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Fall 2002 Family Law

Week One:September 4th, 2002

Murdoch [1975] 1 S.C.R. 423 – partnership – declaration of interest. Know case names for exam.

Chapter One: - INTRODUCTION

Traditional purposes of family law– to look at relationships between persons, relationships between spouses, and relationships between parent and child.

Main topics have included 1. Marriage2. Separation & divorce3. Property Rights (rights during marriage and following marital breakdown 4. Support obligations of spouses (spousal support)5. Care and custody of children6. Support obligations to parents to their children7. Intervention of the state in parent-child relationships (child’s aid society)8. Establishment of parent-child relationships through adoptions.

Think outside the traditional family setting. People may opt for relationships outside marriage.

Baker, “Thinking about families: trends and policies” (p.1-9)

Payne, “Family Law in Canada” (p.12-16) - (sociological aspects)

Both provide a discussion about the changing meaning of the term family. It has evolved from the two-parent model.

Family law today is an ever-changing area. E.g. The state of the law between common law spouses (persons of opposite sex cohabitating). You used to get into common law relationships because there was no liability. In 1978 Ontario enacted the Family Law Reform Act.

This act decided that men & women were in a common law relationship, and if their period of cohabitation consisted of 5 years, then spousal liability was attached. Spousal support could be claimed.

1986 – Ontario passed the Family Law Act. They then changed the time to 3 years.

M v. H. [1999] S.C.J. No 23 Persons in a conjugcal relationship. M wanted some support and sued H. The court said ‘no’ because

they were a same sex couple so the law didn’t apply. M sued under the Charter. The law changes to reflect the fabric of our society. With all of these changes, is the specialness being

eroded? Net family property and equalization – a formula to determine how to divide assets.

Children’s Law Reform Act - Custody and Access – Assistance to Court. Make note of s. 30 & 31.

Legislatures are introducing the resources of mediation and custody assessments (by psychologists) to resolve issues without litigation.


Thompson, “ Rules and Rulelessness in Family Law ” (p.16-18) The article looks at the purpose of family law:

1. To protect individuals from harm within the family.2. To provide the machinery for adjusting affairs between individuals when a family unit breaks down.3. To provide financial support when the family breaks down.

Hogg, “ Constitutional Law of Canada” – (p.18-27) Notes important features of constitutional law. Note – s. 91(26) – gives the federal sphere the power to make laws as to marriage and divorce. Note: s. 92 – Provincial Authority - powers according to the provincial legislatures. E.g.: S.92(12)

Solemnization of marriage and S.92(13) Property and Civil rights S. 92(13) - Provincial authority. Family Law Act (provincial statute) – property and child support

claims. Child’s Law reform Act – deals with custody and access to children. The federal sphere often encroached on the provincial realm. Look under the Divorce Act. Divorce

Act is federal legislation. But under the federal Divorce Act when a judge is obliged to determine whether the divorce will go through, they can also look at child custody. This overrides with provincial authority.

Divorce Act can intrude in areas that you would think would be under provincial authority. In most instances, provincial authority is supreme.

Adoption, custody, access, support, and property division are all provincially determined matters. The article touches on the rationality of dealing with all family law claims in a single place/forum

(unified family law court). The notion of one-stop shopping as a single form for all matters.

Jurisdiction of Family Courts (p.25-27, p.29-30) Must have a working appreciation of which courts are out there. Not all provinces have a unified family court. In Ontario, only half of the province has unified family

courts. Who appoints these justices that work in the courts? Under which legislation do they dispense justice?

Limits of jurisdiction? (Hoggs article)

Intrusion of Charter of Rights. Has helped many to make the slow climb to legal legitimacy. Must take a firm appreciation of s.15

(equality rights), s. 28 (equality rights guaranteed to both sexes.) Limited by s.1 (reasonable limits) & s.33 (notwithstanding legislation) How will the courts respond to competing interest?

Potential Charter applications – 1. Marriage acts prohibit the marriage of mentally disabled people (s.7 of the Marriage Act). Will

that withstand a charter attack?2. Most marriage acts prohibit marriage of close relationships (s.19).3. Marriage is a creature of common law and is designed solely for the legally recognized persons

of opposite sex. So, gay unions did not gain recognition.

Halpern et al. v. Canada Charter was used to modify common law.


Mediation and Arbitration (p.38-39) Article by Payne. It explores the important need for ADR in family law. There have been several reforms – like mandatory financial disclosure, or case management requires

judges to be produced at the front end in managing the law suit, pre-trials, independent assessments, rules of procedure that gives offers to settle (encouragement for the parties to tell the other what they will settle for.) – Rule 49 of Rules of Civil Procedure.

Despite all the reforms, it still comes down to this: we have an adversary system. It is distractive, it destroys people, costs too must time and money, diminishes people emotionally.

Court must be the last resort.

The article looks at the following:1. It is a common feature in Family law cases that in a breakdown there is an

incredible toll paid to the partners and it spills over to the kids.2. The dynamics of marriage breakdown are multi-faceted – a range of processes and remedies

must be available to serve as the family moves in transition. (p.31)3. The lawyers must have some insight into this. These are the lives of people.4. The skilled lawyer knows that the client who is prepared is the better, stronger client. Must be

able to spot the client that needs assistance – counseling.5. Most cases – family law suits settle at the court room door. No full-blown trial. It may take two

or three years, but cases settle because parties search for resolution. Must know what the tools are to settle case. (p.32-33)

6. If you want to be a family law lawyer, you must gain the experience of the art of negotiation. You learn by doing.

7. When negotiation doesn’t work, you must know what the other options are before you rush off to court. E.g. mediation and assessment. (p.34-37).

Justification for Mediation:1. It gives the client a greater opportunity to retain control over their own lives. 2. In contrast to court, it gives to the parties the opportunity to custom design their own

resolution. They can mediate who gets what.3. It is far less intimidating then the adversarial system.4. It is generally cheaper and faster.

You must know when mediation is not appropriate. E.g. when there is a difference in bargaining power – history of mental abuse, addiction, etc.

The article points out a debate of mediation: who are the mediators? No standard of mediation. Most experiences mediators are psychologists, social workers, lawyers, etc. It is becoming very useful.

When the most effective efforts to negotiate fail, then the article addresses a further option – private arbitration. Still quite rare, but there are advantages: p.37 – 1-7:

Advantages of Arbitration:1. Parties are directly involved in the appointment of the arbitrator.2. Litigates in a courtroom are intimidated by the formality, adversarial system. An arbitration

hearing can be as formal or informal as the parties want.3. Arbitrators make themselves available to suit the convenience of the parties (time wise).4. Arbitration can be less complex and is speedier then litigation.5. Arbitrations are private – behind closed doors. Courtrooms are open to the public and the media.

People can wonder in off the street like they could do with the courts.6. Usually cheaper then litigation – although they do have to pay for the arbitrator.7. The costs are more predictable then the cost of litigation.


Main advantages: Speed and cost. Whether it is arbitration or mediation, the client will still need an experienced family law lawyer.

Clients need independent legal advice before settlements are drawn up, advise parties of the rights. S.9(2) of the Divorce Act. Despite changes, family law lawyers have an important part to play in disputes.

Silverman, “Conflict of Laws: Some Matrimonial Problems” P.40-41

Legal definition of ‘family’

Three cases Taylor v. Rossu, M v. H., Walsh v. Bonna – see how the Charter has been used. Taylor cases – centered on Domestic Relations Act (Alberta). Taylor and Rossu co-habited for 30 years

without marriage. Taylor separated and sought spousal support. If they had been married, there would be no question that he paid. But because they weren’t married, they she had no legal claim to spousal support. Canada has undergone significant change that it recognizes common law relationships.

Taylor illustrates how parties have used s.15 of the Charter to assert claims.

In Ontario, s.29 Family Law Act – ‘spouse’ has a different meaning here then in Alberta. It defines ‘spouse' to include husband and wife, and of opposite sex who have co-habited for not less then three years. S. 29 recognized common law spouse. Taylor didn’t have the benefit of that section so she used the Charter. Consider the support Taylor found in SCC p.42-46 Miron v. Trudel.

Miron determined Ontario legislation – under automobile legislation – statute discriminated on the basis of marital status.

P.48 – discussion at the court of appeal level. C.A. didn’t read in the term common law spouse. Showed deference to the legislature.

Alberta legislation was amended.

M v. H. p.52-77

s.29 – Family Law Act – operating section for this case. It defines spouses as married person or persons of opposite sex living together. M and H were a couple in a same sex relationship. During that period of time they acquired property, but H’s contribution was greater. They continued to live together, but the business one was running turn a downturn and then they separated. One party brought under the Family Law Act for support. They resided together for a period of more then 3 years. Trial Judge determined s.29 was unconstitutional. It went to C.A. and SCC. SCC found s.29 breached s.15, and could not be saved by section 1. It allowed the legislature to intervene.

Ontario Legislature at the time had no support for the idea of bringing same sex into spouse status. Look at s.29 – they did not redefine the term spouse. They created a whole new law definition of same sex partners.


Walsh v. Bona - p.77-85.

Man and woman who lived together for 10 years and separated. The woman sued for property division. She launched an attack on the term ‘spouse’.

S. 1 Family Law Act – note the word ‘spouse.’ (compared to s.29)

S.29 – spouse includes common law spouse and same sex for getting support. People were kept out of property division.

Walsh wanted a property division, but wasn’t in the spouse club because they weren’t legally married. The man went into court and said she is entitled to the common law remedies – let her try those out. The court said 81-83, the problem is that she doesn’t have a presumptive right to property division. P.81 – “the fact that the appellant might be able to avail herself… equitable remedies..presumptive rights…it is uncertain…burden of proof…prove she made a contribution…reasonable expectation…context of a spousal relationship.”

It left it to the legislature to make the change. When do you know if this type of relationship starts? It is easy to tell with a marriage, but what about this type of relationship?

August 9th, Manitoba – equates property rights with those who cohabitate right away.

Limits are unfolding and you can clearly see how the Charter has been used.

Violence: The DarkSide of Family Life (p.90-122)

Explores the dynamic of violence in the family. In particular violence against women and children. Carefully review this because as a practitioner, if you can’t understand the signs of a battered wife, you are doing an injustice to your client. The client must be able to properly instruct you.

Monday: what is a legal marriage?


September 9 th , 2002

Tonight: What is a Legal Marriage?

Brief Intro/Recap: Nullity of marriage – vital importance to the practitioner if only to establish a cause of action. Nullity is NOT a divorce. It has its own rules and procedures. Its pleadings are different; court documents are different, etc. Seek a declaration from a Superior Court. It requires the litigator to discover the flaw in the marriage – looking for the missing ingredient

(found in essential validity and formal validity). Capacity to understand the nature of marriage (duties and obligations) – consent must be given and

must be free of fraud, duress (fear) material mistake. Section 7 of the Marriage Act – no person shall issue a marriage licence of who they have reasonable

grounds that they lack the capacity to marry. Lack of Consent renders a marriage void, but in certain circumstances capable of ratification. Eg.

At the time of the marriage there is some incapacity (e.g. drunkenness). Subsequent to a recover of the incapacity, that party having originally lacked capacity can ratify it.

Creating a Valid Marriage

The examination of nullity – two conclusions must be made as a practitioner:

1. Understanding an annulment action. Important in achieving client objective.2. While an annulment is not a divorce, and it means the marriage is void or voidable, our

statutes will in many cases treat spouses in the same way as spouses in a separation or divorce case.

Section 1(1) of the Family Law Act – “spouse” – definition – restricted to married persons but the spouse club lets in people who have entered a marriage that is void or voidable to have spouse status. This is important because a person in a nullity case may have the same rights as a person in a divorce case. NOT section 29.

Family Law Act:

s. 1(1) – Definitions“spouse” means either of a man and woman who,

(a) are married to each other, or(b) have together entered into a marriage that is voidable or void, in good faith on the

part of a person relying on this clause to assert any right.

Support Obligationss. 29 – Definitions

“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of a man and woman who are not married to each other and have cohabitated,

(a) continuously for a period of not less than three years, or(b) in a relationship of some permanence, if they are the natural or adoptive parents

of a child.


It is a cause of action to terminate a relationship for which divorce would otherwise be a remedy. Divorce as a cause of action is applicable presuming there is a valid marriage. Annulment as a cause of action applies where the ingredients of A VALID MARRIAGE ARE

LACKING.

One client wanted to marry for a fourth time. Causes of action: The first marriage is a valid marriage – cause of action to terminate would be divorce. Marriages 2 and 3 are not valid. As a result, the cause of action to bring those to an end would be

nullity.

Identification of cause of action is important to ensure there is no mistake p. 123-1241. Divorce is not a nullity.2. Nullity is not a divorce.3. Divorce presupposes a valid marriage.4. Divorce, ground to obtain, is based on a post-nuptual event. Eg. One party engages in

adulterous behaviour.5. Divorce dissolves the marriage from the date of the degree.6. Nullity results from a defect or disability which exists at the time of the marriage and

prevents an assailable marriage from coming into existence.7. Where the nullity is void, there never was a marriage. 8. If determined to be voidable it annuls the marriage with retroactive effect. 9. Law appears to be moving the direction equating the consequences (property division, child

support, spousal support, etc.).10. What we must do is to examine the ingredients of a legal marriage.

Ingredients of a legal marriage – two classes.

A. Essential ValidityB. Formal Validity

Class A: Essential Validity of Marriage The legal capacity of parties to marry (s.91(26) CONSTITUTION ACT) Federal jurisdiction.

Ingredients of Essential Validity of Marriage:1. Opposite Sex. 2. Ability to Consummate3. Outside prohibited degrees of consanguinity and affinity.4. No prior existing marriage.5. Consent.

(a) Capacity to understand.(b) Duress (c) Limited purpose marriage(d) Fraud or mistake(e) Age.


Ingredients of Essential Validity of Marriage:

(1) OPPOSITE SEX

Layland v. Ontario. Same sex couple were denied a marriage licence. They argued that the prevention of marriage based

on same sex status was a violation of their charter rights under s.15. That was denied. The court looked at the common law basis for a marriage (p. 126-127). At common law, the only

marriage deemed valid was with people of the opposite sex. North v. Matheson – pre-charter case – same in terms of the facts. P.126 – reasons adopted. In both cases, found their roots in denying the application in the moral and religious dynamic. P.127

“ I conceive that marriage, as understood in Christendom, may for the purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

Additionally, the court said that sexual relations between a man and woman are viewed as a fundamental element to a marriage. (Corbett v. Corbett p.135 notes and question section #6)

p. 127, 2nd paragraph, “the characteristic that distinguish it can only be met by two persons of opposite sex.”

Corbett says that a person’s sexual constitution is fixed at birth and cannot be changed. The court made summary reference to the sociology brief opposing the application. P. 128 - The court found that under common law in Canada applicable to Ontario a valid marriage

could take place only between a man and a woman, ant that persons of the same sex do not have the capacity to marry one another.

Under statute law, sexual orientation was analogous to -- capacity. The court said as a purpose for marriage, it had a social function – to encourage procreation.

Re K (1995) case notes & questions. p. 89 #17. Law did not prevent homosexuals from marrying; they just had to marry people of the opposite sex.

The court determined that the charter could not be used as a challenge to common law – p.129. Contrast that with Helpburn. Notes & questions on p. 135 – T (M) v. T (J) – US case. Sex-reassignment surgery had given the

wife the capacity to function sexually as a female. Note p.135 - #6 - B. v. A (1990) – applicant was born female but wanted to be male. Some surgery

and injections. It was not completed though. This ‘woman’ secured documents to file under vital statistics – the doctor said the persons’ gender had changed. The couple lived together for 20 years and then separated. One sued for support. The claimant failed because the court found the gender reassignment had not been fully completed.

Recent amendment of section 29 of the Family Law Act – M v. H case too. This changed the law for same sex persons seeking support.

People of same sex who separate have remedies at law. Helpburn case was released July 12th. The charter challenge was a group of gay couples seeking to

marry. They were successful at divisional court. Must note, in comparison to layland, is that the charter may be used to strike down principles enacted in common law. This case is on appeal. It will wind its way very slowly.

Make note: Egale Canada Inc. v. Canada – Conflicting decisions. Make note of the following sections of the Family Law Act:


Family Law Act:

s. 1(1) – Definitions“spouse” means either of a man and woman who,

(c) are married to each other, or(d) have together entered into a marriage that is voidable or void, in good faith on the

part of a person relying on this clause to assert any right.

s.1(2) – Polygamous Marriages – In the definition of ‘spouse’, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

Part III - Support Obligationss. 29 – Definitions

“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of a man and woman who are not married to each other and have cohabitated,

(c) continuously for a period of not less than three years, or(d) in a relationship of some permanence, if they are the natural or adoptive parents

of a child.

Part IV – Domestic Contractss.51 – Definitions

“cohabitation agreement” means an agreement entered into under section 53.

“domestic contract” means a marriage contract, separation agreement or cohabitation agreement.

“marriage contract” means an agreement entered into under section 52.

“separation agreement” means an agreement entered into under section 54.

s. 52(1) Marriage Contracts – A man and a woman who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property;(b) support obligations(c) the right to direct the education and moral training of their children, but

not the right to custody of or access to their children; and(d) any other matter in the settlement of their affairs.

s. 52(2) Rights re matrimonial home excepted – A provision in a marriage contract purporting to limit a spouse’s right under Part II (matrimonial home) is unenforceable.


s. 53 (1) Cohabitation agreements – Two persons of the opposite sex or the same sex who are cohabitating or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,

(a) ownership in or division of property;(b) support obligations;(c) the right to direct the education and moral training of their children, but

not the right to custody of or access to their children; and(d) any other matters in the settlement of their affairs.

s. 53(2) Effect of marriage on agreement – If the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be a marriage contract.

s. 54. Separation agreements – Two persons of the opposite sex or the same sex who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;(b) support obligations(c) the right to direct the education and moral training of their children;(d) the right to custody of and access to their children; and(e) any other matter in the settlement of their affairs.

1(1), 1(2), definition of the word spouse is restricted to married persons. S. 29 – III – defines the word spouse for spousal support purposes (married persons or a man & a woman). S. 53,53, 54 – domestic contract.

2. ABILITY TO CONSUMMATE

Gajamugan v. Gajamugan. P. 136 He maintained he could not consummate the marriage and imitated an annulment action. Issues:

1) Was this suitable for a declaration? 2) Did the plaintiff have a cause of action? 3) Can a plaintiff take advantage of his own disadvantage or inability?4) What were the legal tests to apply?

Rules for inability to consummate are found in Rae v. Rae . Four rules: p.137: 1. The impotent must exist at the time of marriage. Post nuptual impotence is not a basis for

nullity.2. Incapacity must be such to render intercourse impractical.3. Incapacity may stem from a physical or mental, or moral disability.4. Impotence must be incurable.

P.136 – He adduced evidence that prior to this marriage he had a healthy sex life. What is disturbing about the quality is the fourth condition requiring proof that the impotence was incurable. The court accepted his ‘word’ as truth without medical evidence. Likely wouldn’t be that easy now.


Norman v. Norman. P. 137 Second marriage of each party. Wife separated and wants a nullity action. Court dismissed the

application because:1. When the court did a close inquiry, it concluded that there was no sexual relations, but

neither one were interested in sex. Neither thought it was an important part of the marriage. They were just looking for companionship. Note. P.138 – excerpt from the transcript.

2. The real reason for the marriage breakdown was the fight. The court would not grant nullity.3. Based on the Miller v. Miller authority – Ont. C.A. nullity based on impotence, then that has

to be the reason. Defence of insincerely – poses a bar to the application.

How will a court respond where the annulment ground is asserted, but: a) Knowledge of the impediment was known to the applicant before the marriage? (They knew there was a defect). P. 138 Aisaican v. Kiahnapace (when the knowledge was required – pivotal to the nullity action.b) The impotence allegation stemmed from her pleadings where she described the husband suffered a gun shot would 2 weeks before the marriage that made him a quadriplegic. She said that made him incapable of intercourse.c) He decided not to address the allegations.

A party’s impotence at the time of marriage is a nullity ground that may be asserted by either spouse. You can take advantage of your own defect in a nullity (can’t in divorce).

P. 139 – “a further question to be addressed would be the knowledge of the applicant at the time of the marriage, assuming the respondent’s incapacity is established.” Can she assert this ground if she had knowledge of the defect before the marriage?

Harthan v. Harthan (1949) Provided there are no circumstances that bar him or her, knowledge of the defect of he time of defect

before the marriage, then the remedy would fail. P.140-141 Notes & questions #4 (authority is M v. M(a)). On exam.

M v. M – Husband and wife. Wife had some blatant transsexual feelings. They nonetheless had sexual

relations ultimately the marriage broke down. One sought a nullity and the court granted it. The court said it was voidable (not void). The rational is that the court said if it could have been a disability, then in a real sense because it is now a disability, then it makes the marriage voidable. It was only apparent later.

Know when the person became aware of the defect and how long it took them to act on it.

3.OUTSIDE PROHIBITED DEGREES OF CONSANGUINITY AND AFFINITY. Consanguinity: Relationship by Blood Affinity: Relationship by marriage. Note: Ontario Marriage Act, form 1 – you will find the list of people you cannot marry. Note: Federal Marriage Act. P. 141-142


4. NO PRIOR EXISTING MARRIAGE.

Meszaros v. Meszaros. P.142. Get the facts down. Petitioner’s first marriage was in 1953 to Mr. Hamaida. He left in 1956 and said I am already married - I have a wife in Russia. He was never heard from

again. 10 years later 1966, the petitioner remarried – meszaros. Two months after she remarried, she went

to court and got an order under s.9 (1) under the Ontario Marriage Act, and got a declaration that he was dead – no one saw him in 7 years.

This case is important because:1. This was a divorce action, NOT a nullity.2. The importance of Meszaros case revolves around the validity of a prior marriage and legal presumptions that operate to validate a marriage.

Divorce presumes a valid marriage. If the marriage were invalid, the cause of action is would not be a divorce; it would be a nullity.

Was the Meszaros marriage valid? If so, the divorce wasn’t valid. She had no widow or divorce status when she married. It was held the marriage was valid.

Common Law Presumptions were looked at: (on exam)

1. A strong presumption that parties who have lived together and held themselves out as man and wife are validly married. Beatie is the authority. This presumption can only be rebutted with cogent evidence, but may be rebutted by evidence of a prior marriage. p. 143.

2. If a person is not heard from within 7 years, there is a presumption of death. Authority: Re Phene’s trust –common law presumption. Also a counter part – neither the common law presumption of death nor the statute fix or presume a time of death. (you don’t have to prove that he died, the fixing of the time of death is a matter of fact. The onus is on the person seeking the remedy).

The court said if Hamaida was alive at the time of her second marriage, then the second marriage was a nullity.

Re Phene’s Trusts – authority for… Two months after she got married, she brought a declaration forward. The court looked at the argument

that she believed… S.9 (1)(2) – allow a judge to make a declaration presuming a spouse is dead. Mrs. Meszaro had to establish she has status as a widow or p. 143 bottom – “if Mr.Hamaida may be

presumed to be dead then the petitioner was a widow at the time of her second marriage and this marriage may once again be presumed to be valid”

What is the effect of s.9 of the Ontario Marriage Act? The Marriage Act provisions deal only with the formality of securing a marriage licence without regard for the status. Presumption of death helps her.

The court found the marriage was valid and as such, divorce could be considered as a remedy.


Bate v. Bate

Look at the chronology. First marriage – Simser – 1950 1957 – divorced in Nevada, Los Vegas. 2nd marriage – Smedstam 1958 Divorced 1963. 3rd marriage – Bate – 1969 in Nevada. She is asking for a divorce and spousal support. His defence was that there was no legal marriage

between them because one of her previous marriages was not validly terminated. Simser marriage was the subject of a quick Nevada divorces and was under attack.

The court said there are a number of presumptions that apply in favour of Mrs. Bate. (P. 144):

1. Once the petitioner adduces evidence that a marriage ceremony took place between the petitioner and the respondent, which has been done by the filing of the marriage certificate, then there is a presumption of the validity of that marriage. [Powell v. Cockburn] Mrs. Bate produced the marriage certificate to show a valid marriage. (compare this with Beatie – says you must show that they held themselves out before the presumption applies. Cockburn says you don’t have to go that far.

2. Once evidence is presented in support of the foreign divorce, which was done by filing the

decree of divorce, then there is a presumption of the validity of the foreign divorce decree. She then filed the Nevada state divorce decree in the Simser marriage.

The burden then shifts to the respondent, Mr. Bate, to prove his allegations of the invalidity of the marriage and the foreign divorce on the balance of probabilities.

Remember, the ultimate burden remains on the petitioner to show a valid marriage. The proof of any presumption has to do with the quality of the facts and that the civil standard on the balance of probabilities is most important.

Note: Rules of Civil Procedure whenever a divorce action is initiated, you must file a valid certificate of marriage. It is prima facie proof.

Court looked at Powell v. Cockburn. Examine the steps in this case – use it as a template:1. She showed a valid marriage certificate - presumption of a valid marriage.2. He led evidence of a prior marriage and filed her marriage certificate.3. She filed a foreign divorce showing the first marriage had ended.

In Powell v. Cockburn, the court said the wife succeeded. She proved the presumption of a valid marriage.

In Bate v. Bate – Mrs. Bate failed because even though she filed a valid first marriage certificate, Mr. Bate did some real scrutiny into the marriage.

Understand the presumptions and how they operate.


September 11 th , 2002 – Wednesday

5. CONSENT.

(a) Capacity to understand.(b) Duress (c) Limited purpose marriage(d) Fraud or mistake(e) Age.

(a) Capacity to Understand

What is the quality of the consent? The quality of the consent need not be as high as you may think. Banton p. 146-149 (read these pages). Focus on the circumstances of an 88 year old man’s 3rd marriage to a 31-year-old female. Prior to meeting his third wife he wrote a will and left his estate to his children. Prior wills made were revoked on marriage. Succession Law Reform Act (re Wills). After he married, he created a will leaving everything to the wife. He dies. His children allege the

third wife manipulated. Lacked capacity to manage his own affairs. Children were required to prove his incapacity. They did so on the terms to marry and manage his

finances. P. 149 – Testamentary capacity and capacity to marry. P. 149 – court characterized the woman as a strong person out to get the… P.149 – is the will in 1991, had that been revoked as a result of the third marriage. Questioned the

validity of the third marriage and whether he had capacity to give consent. P.150 - Court decided that there was no attack on the formal validity of the marriage. P.150 – “he was a willing victim. He had the mental capacity to marry.” “a finding of the lack of

testamentary … McElroy. – all that is required for the capacity to marry is an understanding. It is not a particularly

rigorous test. Banton was no stranger to marriage. This was his third marriage. P.151 – third paragraph. Spear v. Bengen P. 151 – last paragraph. Marriage does have an affect on property rights. If he had capacity to marry and the marry was valid, s.16 of the Succession Law Reform Act, the

consequence is that… Notes & Questions: p. 152 - #1 – reference to Webb. The court adopts that the characterization

found in Webb, “it appears to me that the contract of marriage is a very simple one, which does not require a high degree of…”

(b) Duress – a constraint, illegally exercised to force a person to do an act.

1. Physical or verbal threat.2. The threat must result in a fear. The fear must be of a degree to vitiate consent3. The test for duress requires you to make some scrutiny of the individual before you (age,

level of intelligence, level of education, any other special indication.)4. Whether the person continued within the marital relationship after the pressure, which

caused the fear, had been removed.


S. (A) v. S (A.)

Arranged marriage – 16-year-old girl. Mother gave consent. Parents received some money for the marriage. Wife alleged her parents had pressured her to enter into the marriage. Founded a nullity action. Wife & husband had never co-habited. P.153 – court’s findings:

(1) The Court addressed the relationship between the 16 year old and stepfather. There was a history of sexual abuse. (2) Secondly, the court found the wife to be creditable.

In assessing whether duress fit, the court considered a limited purpose marriage (p.154). It is a characterization given to immigration cases.

Court’s Submissions: Court concluded that a person may enter into a marriage solely for immigration purposes to

establish residency. P. 154. The judge concluded that the fact that the respondent entered into the marriage so as to facilitate residence in Canada did not affect the validity of the marriage.

Court inquired whether the consent was given due to improper considerations. It concluded that even if that were so, it would not render the marriage invalid.

The court considered: (a) There was never an allegation made that involved the use of physical force. (b) Physical force was not threatened. (c) Conduct alleged, as duress didn’t come from the husband, but from her parents.

Addressing the context of the application, the court relied on Scott v. Sebright (p. 154 – “public policy requires that marriages should not be lightly set aside and there is in some cases the strongest temptation of some parties to act in collusion (fraudulent attempt to misrepresent facts). The difficulty exists…If duress is alleged, a court is on the alert to exercise extraordinary care. The court demands the grounds be made out..”

Thompson v. Thompson [1971] 4 WWR 383 Pascuzzi v. Pascuszzi [1955] OWN 853 (HC). Plaintiff sought an annulment of marriage with the

claim unopposed.1. A court should have very strict proof.2. The evidence must be the subject of substantial corroboration. 3. The court should inquire (a) whether the duress was the inducing factor (b) whether the

duress was of the extent that the person of whom against it was implied was not a free agent.4. Proof of duress does not necessarily require proof of physical force.5. The duress may amount to threats unfulfilled. There is an effect on the person is to create

fear and apprehension.6. Fear is essential, but need not be for one’s self.7. The fear that is the effect of duress must be coupled with an unwillingness of consent.

The court focuses on the common law definition of ‘fear’. Oppressive acts. Oppression may vitiate consent and, if there is no consent, there is no valid marriage.


Most Significant Facts the Court looks at for “Oppressive Acts”: p.1561. Oppressive behavior was applied by the parents and therefore vitiated consent. 2. Different people respond differently to oppression.3. It comes down to a matter of considering a person’s state of mind. Absence of free choice.4. The person’s age, maturity level, emotional state, time between the conduct alleged and the

marriage ceremony, whether the parties lived together, and lapse of time between the marriage and annulment proceedings.

5. Provided the oppression affects the mind, physical force is not required.6. The onus is always on the parties alleging it.

(c) Limited purpose marriages, fraud and mistake

Iantsis v. Iantsis – [1971] 1 OR 245 Immigration case. He admitted all the allegations, except trickery. He pleaded she was aware of his immigration status

prior to the marriage. Was it a valid marriage? Consideration of Limits (revolve around the term ‘fraud’.) A marriage will be considered valid unless it is proven fraud that is induced by material mistake.

Two examples a) a mistake about the nature of the ceremony. (b) Mistake about the identity of the other person.

Mistake by either the nature of the ceremony or identity – voidable nullity action, capable of ratification.

The absence of consent is the common thread. Facts of this case: Ont.C.A. – came as a reference because there was a competing decision on

identical facts (Johnson v. Smith – the relief was granted on similar facts). The judge dismissed Johnson as not being well founded because it relied on American authority. A) Both parties agreed to enter the marriage B) looked at American law. He embraced Swift v. Kelly – no marriage shall be held void merely on the fact that… A case will

not be a nullity unless the person was deceived which amounts to a case of no consent. Iantsis should be dismissed. Notes & Questions p. 160 -#1 – Asser v. – distinguishes Iantsis. The authority is Swift v. Kelly. – there must be misrepresentation – otherwise it is valid.

Truong v. Mali She married to get out of Vietnam. Later she applied to the court seeking a nullity. The court found

there was never an intention to marry. The court took a sympathetic view.


(6) AGE

The age at which a person has the capacity to marry is a matter within federal jurisdiction under s.91(26) of the Constitution Act, 1867.

S.5 (2) Marriage Act – prohibits the issuance of a licence to a minor without the parent’s consent.

Re Fox. [1973] 1 OR 146 Involved the application of a minor seeking a court order to permit the marriage. The test – the court rejected the need to conduct a hearing to give scrutiny to the prospects of the

marriage. P.168. “looking at the chances of success of the marriage were not relevant/material. The whole issue is restricting to the examination of whether withholding consent was reasonable.”

The father’s view was that she was simply too young. That was his evidence. The court then conducted an interrogation. Court looked at the Groom – his age, independence,

assessment of his ability to look after his own affairs, degree of stability, job. The court concluded the father’s consent was unreasonably withheld. No express statement as to why it concluded that other then the marriage had prospect.

III. FORMAL VALIDITY OF MARRIAGE (CLASS B)

A province has the power under s. 92(12) of the Constitution Act to legislate regarding the formalities to be followed by those intending to marry. It may make the creation of a valid marriage conditional upon the observance of these formalities.

The provinces have enacted recent, comprehensive legislation concerning marriage. In Ontario, the Marriage Act deals with such preliminary formalities such as:

1. Issuances of marriage licences.2. The who about who can marry and officiate.3. Form of ceremony.4. The marriage registration process.

Important to know the differences between Essential and Formal Validity of Marriages because:1. Constitutional reason. One is federal, one is provincial. 2. Law of conflicts – a person’s legal capacity to marry is governed by the law of the pre-

marriage domicide. (P. 124). The matter of formal validity is governed by the place where the marriage ceremony happened.

Note: p. 169-170 – The author provides a chart which defines the consequences between a void and voidable marriage. NOT on exam.

Note p. 125 – The author creates notes & questions. Note #4. example of the client who came into his office with three prior marriages.

Divorce is not the subject of religious annulments. Religious annulments have nothing to do with civil annulments.


1. By virtue of s.92 (12) of the Constitution Act, it falls within the realm of provincial jurisdiction. 2.Ontario Marriage Act defines who can officiate, the form of ceremony, the registration of the

marriage licence, etc. 3.The person who is charged with the task of issuing the licence must address certain things:

a) Mental capacity b) Need to determine whether there is a prohibited marriage – affinity, c) Age.

4. s.31 – Marriage Act – a curing section. It remedies a defect. Cure for what would otherwise be an invalid marriage.

Alspector v. Alspector [1957] OR 454 Elderly Jewish couple got married without an Ontario Marriage licence. After 7 years, he suffered a stroke. The children from the first marriage challenged the validity of

the marriage. Does the absence of a marriage licence invalidate the marriage? Court of Appeal dismissed the appeal and held the marriage was valid because:

1. The issuance of a licence is a formality.2. The court posed the question: have the lawmakers enacted the consequences of invalidity?

Yes in s.31. The requirement of the statute to marry that you must have a marriage licence must be read in s.31.

3. Whether the curing section is engaged requires an examination of the intent to comply with the parties – amounts to an assessment of good faith. So, you ask. A) Did the parties intend to marry? B) Did the parties intend to rely on the religious ceremony as proof? c) Did they intend to live together? D) Did the parties intend that those around them recognize them as a married couple?

The court found that they had intended these things together. Where such intention in good faith to comply is shared, then the curing section is engaged.

McKenzie v. Singh Premise: the curing section will not work to validate a marriage where the intent to marry is not

there. Facts: 18 year old who was desperate for money contracted with the respondent man. The forms they obtained had an inaccurate date to avoid a three-day waiting period. Whether this date defect was sufficient to support a declaration of nullity. It was granted. The court was unsympathetic to the whole lawsuit. But it considered it wasn’t a matter of discretion,

it concluded there was no valid marriage – bad faith on the part of both could not make it a good marriage.

P.165 the court says, “I object…no real consent…complete disregard…no valid marriage…” Plaintiff argued the operation of the marriage act was premised on good faith. “guilt on the part of the plaintiff…good faith”


Domestic Contract – check definition.

1. If the marriage is declared to be a nullity, the domestic contract is free standing and the rights are recognized at law. When you a null the marriage, you a null the marriage. There is another area that recognizes contracts that has nothing to do with getting marriage. Nullity of the marriage does not defeat the contract.

2. 2.s.4 (1) & s.1 (1) of the Family law Act – property. There may be provision for dividing property even when the marriage was annulled. s.29 – FLA – persons to annuity action have support rights.

3. Children and Custody. If there is a child and the marriage is determined null. Deciding for the children is what is in the best interest of the child.

4. The Effect of Invalidity

(1) THE VOID/VOIDABLE DISTINCTION

(2) THE EFFECTS OF THE VOID/VOIDABLE DISTINCTION


CH. 3 – DIVORCE

(1) INTRODUCTION

(1) History of Canadian Divorce Law

Before 1968, divorce was extremely difficult to get. A husband could obtain a divorce based on his wife’s adultery. Proof required a high balance of probability. When the first reforms were considered in 1968, it was overdue. Had to prove either Fault or NO fault grounds.

Fault grounds – has to prove someone else was at fault. The reasoning:1. It encourages keeping spouses on the straight and narrow.2. The need for a fault mentality requires a security in the marriage.3. Basic public policy to be served by making divorces tough to get. (e.g. reinforces the monogamous

nature)

Fault grounds would include adultery, imprisonment of your spouse for three years, gross addiction to alcohol or drugs, disappearance of spouse for three years, etc.

Trudeau introduced fault grounds in 1968

No fault grounds – allowed parties to seek a divorce without requirement of fault seeking separation. Fault grounds had the advantage of quick action of the courts. No fault required you to wait at least three years. The court was still steeped in the adversary of justice which is destructive. The Law Reform Commission concluded the following:

1. Reliance on the idea that marriages fall apart because of a single or series of faults is unrealistic.

2. The appropriate grounds for divorce should be marital breakdown based on separation.

3. The need to institutionalize in divorce action mediation and assessment resources. Collolery issues are sucked in so you should ensure resources.

4. The adversary system is ill suited for a divorce action. It is still useful in areas where you are dealing with property determination or spousal support.

These issues led to reform:


Clear objections in initiating reform in 1985:

1. Grounds . Parties to a marriage that break down should be encouraged to resolve the grounds in a non-adversary way. (the federal government eradicated most of the fault grounds – except for two major ones: adultery and cruelty). An important change was the adoption of marriage breakdown as the sole ground for divorce and in particular the reduction of the separation period from 3 or 5 years to one year.

2. Reconciliation and Mediation. Out of the reforms of 1985, there is an emphasis on parties to a divorce having to explore reconciliation in advance of any divorce. There is a positive duty of lawyers to look whether reconciliation should be explored. There is no obligation for lawyers to refer clients with disputes to mediation. As well, it is possible for couples to make several attempts at such cohabitation as long as the total time does not exceed 90 days.

3. Spousal and Child Support. The result of these reform reports, spousal conduct will have no role in determining spousal and child support obligations. These matters are to be seen in economic situations. That is the test that determines support (s.15 (2)(6) of the Divorce Act – Four areas that represent the economic features for determining spousal support:

(a) To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) To apportion between the spouses any financial consequences arising from the care of any child of the marriage and over and above the obligation apportioned between the spouses pursuant to subsection (7);

(c) To relieve any economic hardship of the spouse arising from the breakdown of the marriage; and

(d) Insofar as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

4. Variation of Support Orders . Before a variation [of an order of fixed duration] will be considered, it must be demonstrated that present economic hardship is directly related to the marriage and the changed circumstance would have resulted in a different original order had they existed at the time of he original order. However, this provision does not include variations downward.

5. Child Custody and Access. The sole criteria for the making of an order of custody and access is “the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.” This is coupled with the ‘maximum contact’ feature s.16 (10) – a child is to have as much contact with each parent as is consistent with his or her best interests. Past conduct does not influence it, except if it relates to parenting conduct.

6. Procedures . Changes as to practice and procedure to simplify and make it less adversarial: a) Parties to the divorce are now at liberty to file joint petitions. Not often used. b) Eradication of an automatic trial. Provinces are now permitted to make rules by which, if no matters are to be litigated, divorce may be granted by a judge without an oral hearing. Affidavits are used now. Before 1985, you had to have a trial in every divorce.


S.23 of the Divorce Act of 1968 repealed all prior divorce laws. This statute provided, for the first time, a Canada-wide law of divorce.

The 1968 Divorce Act introduced the concept of permanent marriage breakdown as a ground for divorce.

S. 3 of the Divorce Act retained the matrimonial offence basis for divorce which include: adultery, sodomy, bestiality, rape, homosexual acts, form of marriage with another, and physical or mental cruelty, were considered to strike at the very root of the pledge that the spouses remain faithful and devoted to each other.

(2) The Social Context of Divorce

Divorce Rates in Canada

What makes divorce a public rather then a private issue is that one in two divorces involve children. The divorce rate does not capture the actual rate of marital dissolution in Canada. For religious,

economic, or other reasons, an unknown number of couples separate through a private arrangement or provincial legislation and do not obtain a divorce; unless one wishes to remarry, there is no legal reason to do so.

Divorce Reform and Marriage Breakdown

Economic Consequences

Divorce and Impoverishment

It is mainly women and children who suffer economically in a divorce. Support awards are generally inadequate and have only marginal impact on reducing the

impoverishment of women and children following divorce.

Richardson, “Children of Divorce”

Marriage breakdown begins a process of major restructuring of the family. There are many types of divorce The major problem in determining the effects of divorce on children is that it is very difficult to sort

out what is an effect of divorce per se and what is the result of other factors. Parents may underestimate or be unaware of how difficult a time it is for the children. The effects of divorce on children persists long after the actual separation. Divorce has different impacts on children of different ages. 75% of divorced men and women remarry, so children from first marriages have to develop to

relationships with step-parents. Most divorces do not involve bitter custody battles. Less than 5% of divorces are even contested to

the extent that the matters must be settled in court.


2. CONFLICT OF LAWS

(1) Jurisdiction

Opportunity and inclination Must prove the grounds. Proof of a divorce – ground. E.g. proof in an adultery case. The court must be satisfied they had the opportunity and inclination to perform adultery. Jurisdiction issues. Requires: Divorce Act S.3(1) – a resident qualification. Must satisfy jurisdiction – must be satisfaction of ordinarily resident prior to the launching

document. It may be satisfied by either party. Foreign divorce – s. 22. Must make sure the divorce is valid.

Divorce Act

s.3(1) Jurisdiction in divorce proceedings – A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the preceding.

This must be satisfied before the divorce documents are issued by the court. You cannot start the lawsuit and wait out the time. It requires the residency be achieved. The test is that the parties, either party, must be ordinarily resident. That requires assessment of the term ordinarily resident.

We will have to look at pre-1986 caselaw. It had a three fold test: (1968 Divorce act)

1. The petitioner had to be domicile in Canada prior to the incidence of process.

2. Either the petitioner or respondent had been ordinarily resident in the province for at least one year before the initiation of the lawsuit.

3. Either party had to be actually resident in the province for at least 10 of the 12 months.

Domicile is a conditional that has national implications. Residence is a condition you fill on a provincial basis.

S.3(1) says there is a single test: Either the petitioner or the respondent had been ordinarily resident in the province for at least one year before the initiation of the lawsuit.

“ordinarily resident” – defined in Hinter v. Hinter

Hinter v. Hinter

Wife initiated three lawsuits against her husband. Two in Florida, one in Ontario. The respondent husband took this to his lawyer and his lawyer said she didn’t satisfy the jurisdiction

requirement. They disputed s.3(1) of the Divorce Act. P.202-203. She was trying to be at two places at once. S.3(1) is satisfied if either party is resident.


The respondent was not resident.

“Ordinarily resident”

1. Its duration must be proven to be at least one year.2. That one year must come into existence prior to the start of the divorce.3. Residence is by province, not by country.4. You can’t get much help from the statute.5. It isn’t an actual resident. 6. The question is what does this term mean? Assistance by caselaw.7. Thomspon v. Minister of National Revenue. Rand J. “the expression ‘ordinarily resident’ carries a

restricted signification, and although the first impression seems to be that of preponderance in time…It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or causal residence.” (P.203)

8. MaCrae p.204 – “ordinary residence is a thing that can be changed in a day… Where there are indications that the place to which he moves is the place which he intends to make his home for and indefinite period, as from that date he is ordinarily resident at that place.”

9. They place weight on the issue of the intention of the party. It is a key consideration. P.205 – Maclean – “in my view that finding depends on whether or not the petitioner when moved to Seattle, did so with the intention of making that city their ho9me for an indefinite period.”

10. Coupled with intention, MacPherson, p. 204 – Trial court - “the arrival of a person in a new locality with the intention of making that locality a home for an indefinite period makes that person ordinarily resident in that community.” The C.A. said that is a good indicator, but it is not inclusive. You must look at all the other circumstances. P.205 – the court found: she intended to live in Florida.

Implications:a) Temporary absences will not affect your ordinary residence. E.g. a vacation.b) Even a longer period of time away, would not impair the term provided there is a patent

intention to return.c) Hardy – p.203. “real home test” – Must ask questions: Where was the person born? Where

was he brought up? Schooling? Where did he return periodically while on military leave? Where are his personal records and other personal effects? What is his intent when he is finished – where is he going?

Real home is a theory Additional jurisdictional issues – p.206 –207, #5 Notes and Questions. When can either start a divorce

action? After they spent a year in either province. Don’t confuse the one year residency test with the one year ground for separation (that can start ticking the day they separate).

Notes & Questions continued – s.3(2) of the Divorce Act is where the answer is. It is called competing divorce actions. Whoever is the second action, it is deemed to be discontinued after 30 days:


s.3(2) Jurisdiction whre two proceedings commenced on different days – Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within 30 days after is was commenced, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding shall be deemed to be discontinued.

Both in different provinces and achieve ordinary residence. What if they both issue for divorce on the same day? S.3(3) of the Divorce Act. Competing petitions issued on the same day – if the parties don’t sort it out themselves, the federal court of Canada will step in:

s.3 (3) Jurisdiction where two proceedings commenced on same day – Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within 30 days after it was commenced, the Federal Court – Trial Division has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court – Trial Division on the direction of that Court.

(2) Recognition of Foreign Decrees

If you want a divorce, you must prove you are validly married. If you are not married, your cause of action is not a divorce.

What are the rules to recognize foreign divorce? Bate v. Bate. S.22(1) – if either of the former spouses was ordinarily resident in the foreign place that granted the

foreign divorce, for at least one year before the divorce action, then the Canadian courts are permitted to recognized foreign divorce.

Must establish a valid marriage first. Then establish the threshold on jurisdiction. If either the client or the other side has been subject of a divorce of foreign jurisdiction you must ensure that it is valid in Canada by s.22(1):

S.22.(1) Recognition of foreign divorce – A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.


3. GROUNDS

Grounds include:1. No Fault - Separation for a period of one year – Rushton Principles.1. Adultery – fault ground2. Cruelty – fault ground.

S.8.(1) Divorce – A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

(2) Breakdown of Marriage – Breakdown of a marriage is established only if

(a) The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or(b) The spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or(ii) treated the other spouse with physical or mental cruelty of such a king as to render intolerable the continued cohabitation of the spouses.

Don’t have to wait the time out before you start the lawsuit. The parties can separate jan.1,2001, and walk into court jan.1, 2002 but they can start the action on jan.2, 2001. They can do that if they are ordinary residents.

NO FAULT GROUNDS:

(1) LIVING SEPARATE AND APART

(A) Definition

s.8.(2) Breakdown of Marriage – Breakdown of a marriage is established only if

(a) The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

Separate and apart for one year. Rushton v. Rushton. The law has NOT changed for the test of separate and apart. Separate and apart under the same roof. This required a scrutinization. Little contact between the

two of them. Wife performed no domestic performances for her husband. They each bought their own food, no sexual relations, etc. The reason why these two shared the apartment is because the job they had were as joint care takers of an apartment building.


To be living Separate and Apart, you must prove:1. There was a withdrawal from matrimonial obligations with an intent of destroying the

matrimonial consortment. 2. Must show some element of physical separation.

Economic deprivation put Mrs. Rushton in the situation. She wanted to live but couldn’t.

Dupere v. Dupere

When they separated, they entered into a contract, a separation agreement. They were living apart. But later, they started to live together again after divorce proceedings.

They both said that they wanted to provide a household for their children. The court dismissed the appeal on the basis of no grounds.. P.213. Note – In Canada, you cannot just get a divorce on consent. You need grounds.

Tests: a) The trial judges must exercise great careb) There can be a physical separation within a single dwelling unit.c) A party shouldn’t be penalized for not creating an independent residence because of

economic circumstances. d) Both Rushton features must be met (withdrawal & physical separation).e) Cessation of sexual intercourse in not conclusive, but is only one factorf) There can be an atmosphere of severe incompatibility but remain one household and one

home – as distinguished from Rushton.

Cooper v. Cooper

a) That they occupy separate bedroomsb) Absence of sexual relations.c) Little of any communicationd) No provision of domestic services.e) No social discourse – they are not going to the movies.

Rushton remains the core, Cooper and Dupere help demonstrate additional features. Intention to separate – look at Dorchester.

Dorchester v. Dorchester

He dropped his wife off at a mental hospital. He waited three years and filed for a divorce. Were they living separate and apart?

P.214 – he didn’t decide, or form the intention, that he wanted a divorce when he dropped her off at the hospital. The intention was formed years later.

S.8(3)(a)(b). The intention to separate does not have to be mutual. Somebody must intend it. It need not persist throughout to the day of the divorce. If a person who

intended to separate, looses that ability to intend (mental illness) it proceeds anyway.


s.8.(3) Calculation of period of separation – for the purposes of paragraph (2)(a),

(a) spouses shall be deemed to havbe lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other and;

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouses has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appeawrs to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resume cohabitation during a period of, or periods totaling, not more than 90 days within the reconciliation as its primary purpose.

Grounds – you always must worry about what if they get back together again?

(B) Reconciliation and Resumption of Cohabitation

What is the consequence when there is an interruption in the living separate and apart? Rogler v.Rogler. Throughout the fall of 1974, three were a number of incidences when the husband

would go to the wife’s house for sex. The wife felt that it was the right thing to do in the sight of God. Did that constitute an interruption in the period of time?

The court granted her a petition and rejected a long standing authority – Foote. Foote stood for the proposition that a single course of sexual intercourse meant the clock had to start again.

They adopted Deslippe – as long as the sexual intercourse is not for the purpose of reconciliation, it does not cause an interruption. Must apply common sense.

Note s.8(3)(b) – parliament has inserted a section that one of our objectives is to encourage parties to be exploring the possibility of reconciliation with a view of repairing their fractured marriage. It says parties can resume and the clock won’t stop, as long as it is not is excess of 90 days.

Must ask “have there been any periods of reconciliation?” to see if there are any infringements on s.8(3)(b).


FAULT GROUNDS

May only be advanced by a petitioner who is innocent. It cannot be advanced by the guilty party.

This is in contrast to nullity. Nullity can be initiated by the petitioner.

(2) ADULTERY

This is a fault ground. With a fault ground, you do not have to wait for that one year period. It allows you to start your lawsuit immediately.

(i) Nature of Adultery

Orford v. Orford

Wife initiated an action for alimony. Adultery was a defence by the husband not paying alimony. She had a baby through artificial insemination – didn’t have sex. What is adultery? Anything short of sexual intercourse, will fall outside the definition. P.218 – “adultery consists of the voluntary surrender to another person of the reproductive powers of

the guilty person…” If there is no interference with reproductive powers, then there is no adultery. Contrast Orford with MaClennan.

Maclennan v. Maclennan

Also involved a woman who had artificial insemination. Issue: Does it constitute adultery? Court said there was a common thread – sexual intercourse. Secondly, the court concluded that for

adultery in the classic English caselaw, p. 220, there must be two parties, physically present, in engaging in the sex act at the same time, union of two, involving penetration. Without that physical connection, there is no adultery.

(b) Proof of Adultery

(I) Standard and Nature of Proof

Opportunity and Inclination. The test comes from Shaw, p.221-223. P.222 – “Since it is almost never possible to adduce direct evidence of the act of adultery its

commission is permitted to be proven by evidence of acts or a course of conduct which convicnces the court that it should infer that it did occur. This inference can be drawn although both parties deny their guilt. The drawing of the inference must always be with caution and evidence of that creates only a suspicion of adultery is insufficient. It is impossible to lay down any general rule defining the circumstances which are sufficient in an action for divorce to justify a finding of adultery, except that the circumstances must be such as lead by fair and reasonable inference to that conclusion. Each case depends on its own particular facts”

Must look at the facts of each case.


Ross v. Ellison, p.222, “that there were opportunities for committing adultery is nothing; there must be circumstances amounting to proof that the opportunities would be used.”

Proof is based on the civil standard – balance of probabilities.

(II) Section 10 of the Ontario Evidence Act

s.10 Evidence in proceedings in consequence of adultery – the parties to a proceeding instituted in consequence of adultery and the husbands and wives of such parties are competent to give evidence in such proceedings, but no witness in such proceeding, whether a party to the suit or not, is liable to be asked or bound to answer any question tending to show that he or she is guilty of adultery, unless such witness has already given evidence in the same proceeding in disproof of his or her alleged adultery.

S.10 – p.223-224 – Unique provision. Equivalent to the US 5th amendment. It says you cannot be asked any questions which might then show that you committed adultery.

They are given the protection. They are adopted under the divorce act under s.23.

(C) CRUELTY

S.8. This was a fault ground in the Divorce Act of 1968. The leading case which defines cruelty is a pre-1986 case.

Noel decision. Creates a new authority. Incapability does not constitute cruelty. Require an element of corroboration. Must be something independent of the petitioner’s

evidence.

Knoll v. Knoll

Test for cruelty, s.8(2)(b)(ii) – the person has treated the other spouse of mental or physical cruelty… Mrs. Knoll had been suffering at the hand of Mr. Knoll. She brings an action based on cruelty. The

judge said it wasn’t cruelty. Mrs. Knoll appealed. The c.a. said we had to rethink the term cruelty. At trial, she described his acts of cruelty – he would get drunk and would verbally abuse her and a

few instances of physical. He was a mean drunk. She suffered the effects and had been under physicians care.

Why did the trial judge deny her? He relied on the then existing authority for cruelty – Russell (required proof of conduct that causes danger to life and limb or the reasonable apprehension of danger). The Russell decision was adopted by Bagshaw. That was the state of the law.

C.A. said that we have a new statute. There was a brand new test for cruelty. It replaced the Russell test, p.226. You must establish:

1. Behaviour that is grave and weighty which leads to the conclusion that there is an intolerability of the parties to continue to co-habitat. No trial acts. Mere incompatibility will not do it either.

2. Must look at the whole of the relationship. Important if the course of conduct has a pattern of attacks, harping critical assessment, constant. P.226 – “”it is the cumulative effects of the acts of the defendant upon the petitioner which must be considered and given proper weight.”


Intent to do harm is not a required ingredient. You look at the behaviour and the impact.

Gilbert v. Gilbert

Grounds proven at trial were quite minor. It came out that the petitioner wife was simply stressed out. Her problems had nothing to do with the

husband, it just spilled over. The court rejected the cruelty petition because they found the complaints that had to do with the

marriage were not grave and weighty. What is the impact of one spouses conduct on the other? That is a subjective and objective test. –

p.226. This is an example of incompatibility. It was not an intolerable situation. Incompatibility should not be equated with cruelty.

Noel decision. Creates a new authority. Incapability does not constitute cruelty. Require an element of corroboration. Must be something independent of the petitioner’s

evidence.

Delaney v. Delaney – focused on the lack of sexual relationship in advancing a cruelty case. Husband refused to have sex. Wife initiated an action for divorce based on the husband’s refusal to have sex. Trial judge found that no grounds. C.A. allowed appeal and granted divorce:

1. Wife had a normal sex drive. 2. Cruelty acts can take on a subtle guide. Mental cruelty acts can be worse.3. C.A. was impressed with the evidence to support her claims of psychological and physical

damage.4. C.A. found her evidence was not contradicted or discredited.5. Conduct of the husband’s part was clearly calculated to render intolerable the continued

cohabitation of the spouses. P.227.

Barron v. Bull Wife wanted a child. Husband didn’t want any. She demanded a child – constantly. She threatened to leave him with debts. He filed for divorce on cruelty grounds. Court found there was no evidence to support the allegations that what the wife did caused

any suffering as to make cohabiliation intolerable. The evidence must be grave and weighty – [Noel]. Chouinard – Four principles:

1. Cruelty is a question of fact which emphasizes evidence – not just allegations.2. Finding must follow from the facts found. Scrutiny.3. There is both a subjective and an objective aspect to this. There is no uniform

standard that can be laid down for guidance.4. Describe what a court should do. It should not grant a decree of divorce… the

word cruelty denotes excessive suffering, not just mere anger.


Bens v. Bens P.229 – “court extracts an idea. Judges have avoided anymore precise…in the past”

Held: No cruelty laid out. Allegations are one thing, proof of them are another.

B (Y) v. B (J)

Does sexual orientation by itself constitute cruelty? The husband, as respondent, chose not to contest the proceeding. In choosing not to participant, he

filed no pleading. The only pleading before the court was hers. The action was not made out. The court set out principles:

1. Homosexual practices do not entitle a petitioner for a divorce. Homosexuality in not adultery because adultery occurs between people of the opposite sex.

2. There must be something beyond the homo practice. E.g. p.231 – a) the respondent refusal to engage in normal sexual relations with spouse. b) The petitioner making the request to the respondent not to do that. c) Grave and weighty conduct to make cohabitation intolerable.

3. There must be a sense of callusness indifference. [Anderson]. 4. The onus for proof remains with the petitioner. You can’t just walk in when the

respondent has chosen not to follow. It is a balance of probabilities. That onus is still there regardless of the rules of civil procedure. Rule 19.02 – it provides that if a def. or respondent chooses not to file a pleading, then the respondent is deemed to have admitted the truth in the allegations against them. The court said no. You must at the hearing, you must prove your case on the grounds. Never assume that the absence of a respondents pleading makes it simple.

Homosexuality in not a ground. You must look at the types of behaviour that may draw it into behaviour that would make cohabitation intolerable.


4. BARS TO PROCEEDINGS

Introduction

S.11 of the Divorce Act indicates that it is the duty of the court to ascertain whether or not any of the relevant bars exist, even if neither party raises this issue.

Bars to Divorce Include:1. Collusion2. Condonation3. Connivance

(1) Collusion

S.11(1)(a) of the Divorce Act retains collusion as an absolute bar to an application for divorce. Example: Mr. & Mrs. Smith anxious to get a divorce. They fabricate a scheme that Mrs. Smith was

having sex with Mr. Jones down the road. Mr. Smith then goes to a lawyer and wants to file for divorce based on adultery.

Collusion is an absolute bar. S.11(4) of Divorce Act – actually has a definition. It amounts to fabrication of evidence by the

parties to advance a ground for divorce.

s.11.(1) Duty of court, bars – In a divorce proceeding, it is the duty of the court

(a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;

(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and

(c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce.

(2) Revival – Any act or conduct that has been condoned is not capable of being revived so as to constitute a circumstance described in paragraph 8(2)(b).

(3) Condonation – For the purposes of this section, a continuation or resumption of cohabitation during a period of, or periods totaling, no more than 90 days with reconciliation as its primary purpose shall not be considered to constitute condonation.

(4) Definition of “colluision” – In this section, “collusion” means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it


provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.

(2) Condonation

The purpose of the bar of condonation is to prevent a spouse who agrees to resume or continue cohabitation with a partner, who has committed a matrimonial offence from holding that offence over the other’s head forever afterwards.

Essential Elements of Condonation:

1. A knowledge by the innocent spouse of the matrimonial offence which has been committed by the other spouse.

2. An intention by the innocent spouse to forgive and remit the offence – an animus remittendi.3. The reinstatement in his or her marital position of the guilty spouse by the innocent one – the

factum of reinstatement.

There must be both forgiveness of the offence and reinstatement of the erring spouse: Blyth v. Blyth. The nature of the forgiveness required is forgiveness in the legal sense as implying that the legal remedy

for the wrong is waived by the injured spouse. Example: Mrs. Smith, unknown to Mr. Smith, has sex with Mr. Jones. He finds out, and they reconcile.

Five years later, Mr. Smith wants a divorce. So he goes to the lawyer and says that she had sex with Jones. There was condonation of the fault ground and erases it as a ground for divorce.

The forgiveness of a spouses’ conduct as it relates to a fault ground. It is not expressly defined, though there are a couple of sections that give you a peek into what it constitutes. S.8(3) – reference to the parties who have lived separate and apart and resumed cohabitation, period of 90 days, will not constitute condonation. S.11(3) –

It is in contrast to collusion, it is NOT an S.11(1)(c) – condonation is what we describe as a discretionary bar. The trial judge has the discretion.

In exercising the discretion, a court may nonetheless grant the divorce, if it is in the public interest to do that.

Essential point is that parliament did not think it was healthy in a marriage situation for one spouse to hold it over the other spouses head. Once it is condoned, then it is gone and there is no such thing as “revival”.

Revival is a term that is in. s.11(4).

Caselaw

Leaderhouse v. Leaderhouse. Wife initated action for divorce, cruelty as the ground. She claimed assaults. Were any of those behaviours condoned? Divorce went through. It is a useful case for understanding what needs to be done for condonation.


Test for Condonation:

1. Prior to 1968, it was considered a conditional circumstance. It was never considered absolute. Revival existed.2. Since 1968, it has been reworked. The principal of revival has been abolished. 3. Must be careful about the older acts.4. Essential elements:

a) a knowledge by the innocent spouse of the matrimonial offence which has been committed by the other spouse. You can’t forgive what you don’t know.

b) There must be an intention by the innocent spouse to forgive and remit the offence – an animus remittendi.

c) A reinstatement in his or her marital position of the guilty spouse by the innocent one – the factum of reinstatement.

5. Must have the forgiveness and reinstatement based on Blyth. 6. Nature of forgiveness is in the legal sense. You cannot use that ground in a future divorce act. 7. Elements of reinstatement – Keats authority. Blocking out the offence. 8. Reinstatement must be mutual. The guilty party must want to be reinstated.

Will certain behaviours automatically be considered condonation? Historically, a single act of intercourse with the guilty was enough to condone it. But that was modified:

Watkins v. Watkins

Husband wanted divorce based on his wife’s adultery. Before the trial, they had sex. The court found there was no condonation. Why?

The court stated the elements of condonation. (p.238). These three principles were applied and the court said: the husband had knowledge of the wife’s adultery. But he didn’t have knowledge of all of the adulteries. He didn’t know the extent of the adultery. Also, the court found that he had no intention of forgiving. Also, reconciliation was the further thing from their minds. Court also found that the wife was a passive player. She didn’t demonstrate any interest in reinstatement. P.232 “reconciliation was the furthest thing from the minds..”

p.239 – condonation is a discretionary bar. If the court finds it, there is still a back door. There is an out. Even if they did find condonation (which they didn’t) they would take refuge that it would be in the public interest to grant the divorce – there was a child involved.

Conclusion: while one act of sex used to be a condonation determine without much question, it is no longer the case. You must apply the Leaderhouse considerations.

S.11(1)(b) – a duty on the court to ensure that there have been reasonable arrangements for the support of children in the marriage. No kids, no problem. The court must be satisfied that there are reasonable arrangements. Where reasonable arrangement have not been made, the remedy would be to stay the divorce.


Geddart v. Geddart

Looks at when the court would use its discretion to stay the granting of the divorce. Wife didn’t seek financial support. The judge was concerned about the wife not having enough money

to take care of the child. The parents didn’t appreciate that and appealed the trial judges ruling. The C.A. removed the stay and said the trial judge failed to pay attention to the parties. They found the

parents were responsible. They were prepared to conclude that $500 was not a lot. Even if the wife were to experience financial problems, the father would help. There were no bad acts of faith. P.244 – the stay is a powerful tool. Be careful where you use it.

Note: this is a 1993 case. It is a pre-child support guidelines case. 1997 guidelines came into effect.

Briand v. Briand

Parents had two children. Petitioner wife was on welfare. The husband’s income was about $12,000. Wife asked for custody, but did not ask for child support. She knew that every dollar that she got in child support didn’t go to her, it went to the government. Her view was, ‘what’s the point?’ Any additional amounts would reduce her payments.

The court said ‘no’- that is an insufficient argument because:1. Matter is about welfare payments – public policy. It is not for the courts to differentiate to

relieve one parent of the responsibility. What would you do with other low income workers?2. Even though this is a 1996 decision, everyone knew the guidelines were coming. Even this trial

judge referred to the guidelines in draft form and said that the court has the responsibility to enforce the intentions and objections of the child support guideline. Our duty is to enforce.

P.246 – court was concerned with financial disclosure. This is a problem in matrimonial cases. Appropriate and full financial disclosure . Whenever it doesn’t happen, the court will interrupt the

proceedings. Child support guidelines have remedies for financial disclosure.

Orellana v. Merino

Mother was custodial parent. She had two children. Child support was supposed to be paid by the father. He didn’t pay and left the country.

He did return later. She initiated petition for divorce. He didn’t disclosure any financial matters. The wife’s lawyer at one point wrote a letter describing what the husband allegedly did or didn’t do

and sent it to the trial judge. DO NOT send letters to judges. You will be reported to the Law Society.

You are supposed to file an affidavit in court. In that letter, the lawyer said that we can’t prosecute because we don’t have any information. It will

cost too much money to investigate. The trial judge denied the request. It would be totally inconsistent with the guidelines. The trial

judge was critical of the mother because she made no effort to enforce the existing order – since the husband came back. Also, she made no effort to communicate with the FRO (family responsibility office). She had some info, but made no effort. Court was also critical of the mother that she didn’t need support.


McLeod, “Annotation” (from this case)

Who is really disadvantaged by the stay? Who does the stay really hurt? It results in no divorce. It keeps her in a married state and her intent to remarry someone else. The stay is not effective and is punitive to an innocent spouse. It interferes with the innocent spouse

from getting on with their life. The court can still deal with the deadbeat dad. There are other ways to enforce the child support

order. E.g. jail for 90 days. There are remedies independent of the stay that would likely be more helpful. Helpful critique.

Ninham v. Hinham

Wife sought divorce and started interim motions – temporary child support orders. The father ignored this payment.

His reasons was that it was contrary to his beliefs. He disputed the courts jurisdiction to tell him what his parental rights were. He didn’t provide financial disclosure.

P.251 – court looked at the wife’s attitude. “it is abundantly clear from the evidence of the parties that they pay some lip service…arena.”

“Although customary marriages and even divorces have been recognized by courts in Canada, Indian marriages and divorces are nevertheless governed by the respective provincial and federal laws applicable to all other citizens. The parties in this matter chose to marry under a provincial licence and now choose to seek relief under the Divorce Act.”

With the competing circumstances stayed the divorce.

McLeod “annotation”

“No one forced the parties to invoke the litigation process. Spouses can settle their disputes between themselves and rearrange their rights to suit themselves, so long as children’s interests are not compromised. However, once a person invokes the litigation process a judge must decide the dispute according to law.”

Separation agreements can be used. Every can be taken care of – except the actual divorce. Go to Child Support Guidelines –statement of principles.


(3) CONNIVANCE

Connivance is only a bar if a divorce is sought in circumstances described in s.8(2)(b).

Example: Mr. Smith encourages Mrs. Smith to go have sex with Mr. Jones. The prompting and encouragement for a spouse to commit a fault ground.

1. It applies only to the fault grounds adultery or cruelty.2. It is not defined in the Divorce Act.3. Its meaning is taken from caselaw.4. It is a discretionary bar. The court in finding connivance, may grant the divorce if it in the

public interest to do so

Maddock v. Maddock

Husband and wife mutually agree to separate. Separation agreement has a standard provision – that they will live separately. Judge suspected the husband was conniving. Therefore, no divorce. C.A. granted the divorce because: p. 242.

1. Essential element of connivance – that the person complaining of the adultery behaviour has consented (prompting and encouraging). Corrupt intent.

2. Husband was complying with the separation agreement.3. 6 principles enunciated here. List them later.

Does a spouse have a legal duty to stop adultery or to take steps to stop it?

Fleet v. Fleet

She suspected that her husband was guilty of adultery. She followed him and found them parking. She watched them and then left.

The trial judge found her passive behaviour amounted to connivance. On appeal, c.a. said there is no duty on the spouse to put to an end the adulterer’s behaviour at any

stages. All principles of Maddock were preserved.

Connivance is a difficult thing to prove. Investigate these things on facts.

(5) Reasonable Arrangements for the Support of Children


RECONCILIATION AND CONCILLIATION

(1) Duty of Lawyer

s.9(1) Duty of Legal Advisor – it is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in divorce proceeding

(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and

(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counseling or guidance facilities know to him or her that might be able to assist the spouses to achieve reconciliation,

unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

Each legal advisor is required to discuss with the spouse “the possibility of the reconciliation of the spouses.”

Duty imposed – s.9 of the Divorce Act – lawyers have an obligation that is two fold: must explore the possibility of reconciliation AND to educate you client to the resources in the community to assist them in reconciliation.

It does not make lawyers mediators. Exceptions to the extent of exploring this area. E.g. if you client comes in beaten black and blue. It

would not be appropriate. Use common sense. Alert you client to the duty imposed on a trial judge to explore reconciliation.

(2) Duty of the Court

s.10.(1) Duty of Court, reconciliation – in a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

(2) Adjournment – Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall,

(a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and

(b) with the consent of the spouses or in the discretion of the court, nominate

(i) a person with experience or training in marriage counseling or guidance, or

(ii) in special circumstances, some other suitable person, to assist the spouse to achieve a reconciliation.

S. 10(1) – judges must explore whether there is a prospect for reconciliation. Parties must be ready to have a judge consider this.


In the event there is an adjournment, it is time limited to a 14 day period where they may explore reconciliation. They both have to want to explore reconciliation.

6. EFFECTIVE DATE OF DIVORCE

s.12 Effective date generally – Subject to this section, a divorce “takes effect” on the 31st day after the day on which the judgment granting the divorce is rendered.


September 25, 2002 – Wednesday

Chapter 4 – Family Property

1. Introduction(i) Historical Background

Before 1986, the prior law had been the Family Law Reform Act. Before 1978, division of property was governed by common law, with some statutory authority – the

Married Women’s Property Act. Common law sprung from the doctrine of the unity of personality (p.257):

1. The law recognized that husband and wife became a single legal entity, where the husband was treated as that legal personality.

2. The wife had no right, independent of her husband, to contract, sue or be sued, or to make a will.3. The husband acquired the right to manage and control the wife’s property and profits.4. Wives secured some modest protections. The husbands liability to pay her debts, and on the

husbands death, a wife was entitled by virtue of her dower to an estate for life in a third of all the estates of inheritance of which he had been seised in possession

The legislatures began to enact statutes. The Married Women’s Property Act – gave the wife the right to acquire property and to maintain property. The husband and wife were to be treated as strangers in determining ownership property. This ignored economic reality, however.

The wife was the homemaker. She got no monetary consideration for doing so. She was not in possession of funds and was not in a position to acquire property. So, the person that paid for the item, kept the item – the husband.

The courts created certain presumption to deal with the harshness (258):1. Presumption of Advancement – where there was a purchase of property or transfer made by the

husband in favour of the wife, it presumed a gift. That it was intended to be given to the wife and as such was an owner. The equity would be vested in the wife’s name. If the property was in joint names, then it would be presumed to give ½ gift to her. The presumption of advancement could not be used to assist a wife where the title to the property was taken in the husband’s name alone.

2. Presumption that beneficial interest follows legal title . 3. Presumption of resulting trust . Arises where a non-titled spouse secures a declaration of the

court that they have an interest in the property; a result of contribution –generally of money. Contributions through household management and child raising were not treated and relevant

4. contributions to give rise to a presumption of resulting trust.

The problem with any one of these presumptions, is that they have no certainty or predictability. They call into a need to scruntinize the conduct and need of parties.

Neither the presumption of advancement nor the presumption that the beneficial interests follows the legal interest could be used to assist a wife where the title to the property was taken in the husband’s name alone.

Murdoch case. The family law reform act was enacted. It abolished the doctrine of the unity of legal personality. It said that in statute law, husband and wife would be considered to be strangers.

Reform continued. Family Law Reform Act, 1978


(b) The Family Law Reform Act, 1978

That law enacted a rule: while parties continued to cohabit, then the owner of property the parties are able to deal with their own property with anyway they wish – with one exception – even when cohabiting, the owner of the matrimonial home cannot be sold without consent of the other spouse.

It provided for the general retention of separate property during the marriage couple with the division of the family assets and, in certain circumstances, non- family assets on marriage breakdown. The norm for the division of family assets was that of equal division.

This law also created two types of property:1. Family Assets : it doesn’t matter how acquired or who has title. You divide it half. They were

the things used by the family together as a family. E.g. car, house, etc.2. Non-Family Assets : e.g. the family business that one of the families run or the pensions, or the

bank accounts, etc. This is where the real money is. The owner kept the property. No division. This was the real weakness of this reform.

This Act didn’t work well because of two major flaws:1. It created an artificial distinction between two categories of property.2. There was a little door allowed the court to sometimes divide the non-family assets.

(c) The Family Law Act:1. It is a system of community of property.2. It is a deferred system. There is no community until a triggering event3. During cohabitation, before any triggering event, spouses are separatists to the property, and can deal

with that in any way you want.s.21 Family Law Act (authority of constraint.)4. Where a triggering event occurs, that causes part I of the FLA to operate. 5. The distinction between family assets and non-family assets has been abolished.6. Part I of the FLA tells you when a triggering event happens there is a formula that kicks in.

Unmarried couples, both opposite-sex and same-sex, are not presently covered by the statutory regime of the FLA because they are not spouses within the definition of s.1(1). Unmarried cohabitees do have access to common law remedies that apply irrespective of their marital status.

Valuation Date: s.4(1) – the earliest of any one of five conditions:1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

(Most common by far). Date of Separation.2. The date a divorce is granted.3. The date the marriage is declared a nullity.4. The date one of the spouses commences an application based on s.5(3) that is subsequently granted -

(improvident depletion). (Alzheimer’s section – when one spouse says the other is incapable of handling the affairs.)

5. Date of Death.


When a triggering event, valuation date, occurs, then the property division regime of net family property and equalization sets in. Note the steps.

Step 1 : V-day. At the time of a triggering event, the lawyer must visualize taking a picture of all the property. The property interest crystalizes at that moment. You look at the title of the property. You make two piles – wife’s and husbands. What goes into each pile is based on title. The value of the home gets put into whosever name it is. If it is joint, then ½ goes in each pile. This is net of debt on v-day. E.g if the house is worth 100,000, but he has a mortgage of 50,000. He is only accountable for the equity in the property.

Step 2: Look at each party’s pile. You are looking for excluded property. Make statutory adjustments because you are in search of the net family property. Net family property means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(i) the spouse’s debts and other liabilities, and(ii) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, calculated as of the date of marriage.

Step 3 – looking for premarital deductions. Then you take the values less the debt. Step 4 – Equalization of the two NFP’s

Once the NFP is determined for both spouses, it is then possible to calculate entitlement under s.5. The smaller of the two figures is deducted from the larger. This figure is then divided by one-half. This amount represents the entitlement of the spouse with the lesser of the two NFPs.

Under s.5(6) the court may award a spouse a greater or lesser amount if the court is of the opinion that equalizing the NFPs would be unconscionable having regard to the factors listed. This is rare.

Spouses can opt out of Part I of the Act or modify the rules applicable by entering into a domestic contract.

s.5(1) – Equalization of net family properties – when a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them..

Net family property – all the property in step one – except subsection (2) Know excluded property so you can protect your client.

s.4(1) – Definitions

“property” – means any interest, present or future, vested or contingent, in real or personal property and includes,

(a) property over which a spouse has, alone or in conjunction with person, a power of appointment exercisable in favour or himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of property, and

(c) in the case of a spouse’s rights under a pension plan that have vested, the spouse’s interest in the plan including contributions made by other persons;


s.4(2) Excluded Property – the value of the following property that a spouse owns on the valuation date does not form part of the spouses net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage. (can’t be from the spouse).

2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.

3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represented those damages. (Case law has defined that the damage recovery for lost earnings. Shaver [1992] 37 RFL (3d) 117. )

4. Proceeds or a right to proceeds of a policy of life insurance, as defined in the Insurance Act, that are payable on the death of the life insured.

5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced. E.g. inheritance money went to improving the matrimonial home – no excluded property for that. You can trace the money through. s. 4(3) says there is an evidentiary onus.

6. Property that the spouses have agreed by domestic contract is not to be included in the spouse’s net family property.

s.4(3) Onus of proof re deductions and exclusions – The onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it.

Summary of the features to exclude property:a) a definition defined in the statute s. 4(2)b) if gift or inheritance, it had to come into existence after the date of the marriage.c) if a gift or inheritance before the marriage, it is not excluded property. It is probably a pre-marital deduction.d) property that you would treat as excluded property, if in the matrimony home, status is lost.e) excluded property only works to the value of what is left on the date of separation. If converted into the home, it is lost.

Pre-Marital Property

s.4(1) – net family property – (b) is the definition. You should get a benefit if you bring something into the marriage. You should get a credit.

Pre-Marital Deduction – the deduction of the value of property, other than the matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, calculated as the date of the marriage.

Example: A husband owns a Rolls Royce before he marries. The value of the car is $50,000. It’s the husbands and

he keeps it. 8 years later they separate and the value is worth $100,000. Remember step one? Take a snapshot of the property on valuation day. The value of the rolls on the V-ay, then goes into the pot. But he gets a credit and he can shrink the pile.

When he got married he owed the bank $49,000 on the rolls. His premarital deduction now becomes $1000.


Look at the difference between a premarital deduction and excluded property. Excluded property means that something has to exist on valuation day. But with a premarital, it is the value on the date of marriage.

The $100,000 goes into step one. What’s his premarital deduction? $50,000 - $49,000 (debt) = $1000. The law is saying the increase in the value of the item while cohabitating is going to get flushed through the system.

What if he had a large piece of land before he got married. It is a rental property and he is making money. They then decide to live there. So the rental property becomes their home. He then looses the deduction because it is the matrimonial home.

Summarize Rules/Notions of Pre-Marital Deductions:1. A premarital deduction is the net value of the property existing immediately before the marriage.2. The object of a premarital deduction is to create a credit to reduce the spouse net family property

pool.3. What is important is that it exists on date of marriage. It is irrelevant what happens to it later.

Folga [1986] 2 RFL (3d)

Calculating a spouse’s Net Family Property:

1. Determine the valuation date. This date determines what property is to be included in the calculation and fixes the time for valuing the property.

2. List the property owned by the spouse on the valuation date.3. Determine if any of the spouse’s property is excluded by s.4(2). 4. Determine the value of property owned by the spouse on the valuation date which is not excluded.5. Calculate the spouse’s debts and liabilities on the valuation date. Since the NFP of the spouses are

intended to represent the net financial product of their marriage relationship, s.4(1) permits a spouse to deduct debts and other liabilities on the valuation date from the value of included property.

6. Deduct the amount in step 5 from the amount determined in step 4.7. Determine the value of the property, other than the matrimonial home, that the spouse owned on the date

of the marriage. Since only the gain after the marriage is shared, the Act allows a pre-marital property deduction. However, for policy reasons, there are special rules governing the matrimonial home.

8. Calculate the value of the debts and liabilities of the spouse on the date of the marriage.9. Deduct the figure arrived at in step 8 from that determined under step 7. 10. Subtract the figure arrived at in step 9 from that determined under step 6. If the result is a negative

number, it is deemed to be $0.00 by s.4(5).


General observations:

1. The term property is pivotal. S.4(1) defines property. It means any interest, present or future…It is so wide and broad that there is very little it doesn’t cover. But it does not cover professional degrees.

2. Valuation date is generally date of separation. Values are crystallized/fixed. That raises the question “what happens to post v-day value increases?”

3. These are the property division rules for married persons. Therefore, these rules do not apply to same sex or common law partners. They are excluded from part I. With two provisos: they do have property rights (constructive and resulting trust). Bona v. Walsh - . s.1(1) – definition of ‘spouse’. Spouse for part I purposes means married persons.

4. NFP provides for this scheme where you go through these steps. This creates a debtor-creditor relationship because their nfp’s are not going to be the same. Generally tis requires an immediate payment. The act provides for installment payments. That applies in two instances: family farm or business (if you had to pay the money right away, you could be killing the goose) s.11 & 9 of the FLA.

5. Cornerstone that makes this work is full financial disclosure. S.8 of the FLA and Rule 69 of the Rules of Civil Procedure.

6. The evidentiary onus, s.4(3). To take an advantage of a deduction, you must prove it.

7. If the person’s NFP is a negative number, it is deemed to be $0 – s.4(5)

8. The courts do have a right to vary the equalization, but that is extraordinarily rare. S.5(6) – allows a judge to fiddle with equalization. Note: there is an overriding test that must be met before a court can change equalization – the term is ‘unconscionable’. It is a very high standard to meet. Also, s.5(6) a-h.

9. This act puts real emphasis on valuation. This act has made property appraisers rich. You must look at valuation property at the date of marriage. You must look at the valuation of property on v-day.

10. The FLA provides no real room for the super person theory. E.g. a guy like Mick Jagger – it doesn’t matter who you are. S.5(6)(e) – maybe.

11. The FLA allows parties to contract out. You don’t like NFP, you don’t have to do it. But you must create a marriage contract to do so. The act will protect that contract.

12. The statute has created larger property packages for women at the end of the day. Where the property packages are larger, what impact will that have on spousal support? If the property package is large, it should reduce the person’s need, which is a cornerstone for spousal support.

13. Limitation periods. S.7. limitation for the initiation of the property action.

14. EQUALIZATION DOES NOT MEAN 50/50. Everything is not split down the middle. It is a scheme for equalizing what has been created during the course of the marriage.


Example:Wife has title to home. V-day value on the home to which the wife has title is $100,000. It goes into her pile. But what if 6 months after they separate the home’s values increases to $1,000,000. It is the value on v-day though. There are other remedies which could be looked at (e.g. resulting & constructive trusts).


September 30 th , 2002 – Monday

Find NFP Rule: Family Law Act Tools: s. 4 – property, valuation date. NFP :

1. Take a snapshot and divide the property into two piles. Look for who has the property in their name. You deduct current debt attached to the asset.

2. Rip out the value of property that represents excluded property. S.4(2) E.g. after the date of marriage an inheritance received from a third party or income derived from it. The donor must provide written instructions to exclude the spouse. Anything excluded because the parties agree to be excluded by a marriage contract.

3. Pre-marital deductions. You won’t find a sign that says here I am. Look to the definition of 4(1) of net family property. (b) part is the definition of pre-marital deduction. It is the value of property owned on the date of marriage. The Pre-Marital Deduction must be reduced to the extent of debt owing on the asset. It is a credit as of a fixed date – the date of marriage. Equalization. Remember s.4(3). & s.4(5). S.5(6) – it must be unconscionable for this section to kick in.

4. Equalization. 4(3) –

NFP - p.313

Types of Case Law:

Identifying the valuation date: Caratun concept of property: what is it? Implication?: Brinkos, DeCosta, deductions and exclusions: Folga, Decosta, Mittler, Oliva, Smith, Goodyear s.5(6) – p.380 – unconscionable test.

Caratun

Issue: identifying v-day. s.4(1) – the language of the definition states, “the date the spouses separate and there is no reasonable

prospect they will resume cohabitation.” This definition is subject to Facts: there was a physical separation when the wife petitioner left the home. July 1981. In 1986 there

is a lawsuit. She advanced the argument, that she always held out that they would reconcile and resume cohabitation. She said the v-day was 1984. She was trying to adjust. Court rejected.

She wanted to change the v-day to a point where the husband’s pile was bigger. Court said the test to be applied: How, objectively viewing all the circumstances, one may view the

valuation? It is not what the wife thought it was. The court looked at both spouses behaviour. Evidence disclosing an intention to reconcile had to be manifesting as coming from both in some

measure. There must be mutuality of intention of living together. The only reason she advanced the argument had to do with property acquisition and his NFP was larger. Note & Questions - #1.


Brinkos v. Brinkos

Defines ‘property’. Income from a trust in favour of the wife or future income. Note: prior to the marriage, the wife had received by way of gifts by her parents, money that were put

into an account. There is no issue that the account had a pre-marital deductability. During the marriage, the bank account trust continued to grow. In 1972, parents made arrangements to

transfer it to a formal trust. That stipulated the wife was entitled to the income during life. The question was after the date of separation, on v-day, could the husband say that the future stream of

income fell within the definition of ‘property.’ The trial court said no. On appeal, the court said that future income is property:

1. They looked at the definition of property and found that open to plain, direct and broad… embracing a

2. The wife’s life interest in the trust characterized it as a right in personal property.3. The court is careful not all rights to income can be classified as property for NFP and

equalization. Don’t consider this too broader.4. The argument is raised p.316, because the wife made the argument that this is not part of my

NFP. Income from a trust was an entitlement to earn income, like a professional practicing under a licence. . The court acknowledged there was a conflict in caselaw. It concluded that the right to income of an individual dependant on personal service is not property (Linton v. Linton).

5. The court was careful not to tread on the suggestion that a degree or licence was not a piece of property.

6. The mere fact that an asset may not be transferable, does mean that the asset is not property. To say that it has no market value, doesn’t mean that it should not be considered property.

7. The wife suggested that she was worried about “double-dipping” – if you value this future income stream and then throw it into my NFP, it will get flushed through and the husband will get a benefit. But the husband was also suing for spousal support which had to do with her ability to pay. She said that she would get hit on the property division and hit with the quantum of support for future income. If the future income were not property…

Decosta v. DeCosta

This case had to do with: (a) The husband’s interest in the capital of an estate. (b) How an equalization is to be paid. It raises the concept “if and when.” P.322-323.

At the time of separation the husband was 64. He was an ‘adopted’ great-grandson of the testator. The testator created an estate and the great –grandchild would get the interest. The grandchildren when then get what was left.

Problem: was the adopted grandchild going to get it? In 1980, before the parties married, DeCosta was part of a lawsuit stating that he was entitled.


The husband is concerned about the potential right to received the principle amount of the estate. Trial judge found the husband was likely to be successful and held the future interest in the capital was to

be included in NFP and equalization. CA dismissed it. But in dismissing the appeal, they gave him a break. P.320-322 – court was satisfied the husband’s right to share in the income had been determined and

share in the capital of the estate. “His interest is not subject to the usual” Contingent or future interest. Authority Black v. Black. Definition of property is all encompassing. Court also referred to Mittler v. Mittler. Manner of paying off: he said why should I have to pay for something I don’t have yet? The court said

you will pay the equalization if and when you get the item as represented as future payment. S.9(1)(c) – connection to section 11. “if and when” as a concept is not specifically addressed in the FLA.

The court of appeal said it is a suitable remedy as is has to do with considerably valued future contingent interest. “as to the merits of the husband’s position, the unfairness complained of appears obvious.”

He is not trying to escape liability. He wanted relief. There was an authority to help: Marsham v. Marsham. That was a pension case. Court said there would be an interest payment on it: s.9(1)(d). This case is important for three reasons:

1. The def of the term property is very broad.2. The def has little to do with timing – when you receive it. 3. In rare circumstances, the court will apply the if and when principle.

Example:

V-day- two assets: house $100,000 & pension $300,000. Both assets are in the husband’s name. No debt, no excluded property, no pre-marital deductions. What is the husband’s NFP: $ 400,000 Wife’s NFP: $0.00. Equalize: He will have to pay to her $200,000. Where does he get it? The House is only worse 100,000. If and when would say that when he gets his pensions, she gets the pension. If and when is a creature of

case law.

Limits to the Definition of ‘Property’:

Caratun v. Caratun – (Court of Appeal) p.324.

1976 – married. Separated in 1981. While in Canada, the wife worked outside of the home and was the financial provider while the husband

studied school to obtain a dentistry licence. 1981 he gets the licence.


Did his licence represent property that could enhance or expand his NFP? So, how wide is the definition of the term property.

Justice Van Camp found the licence was a piece of property and fell within NFP under the FLA. P.325. Coreless v. Coreless – this was a conflicting decision. Because the degree could not be exchanged for

value, it could not be considered property. Linton v. Linton is another authority about this issue. Justice Van Camp found that (2) the NFP should be adjusted to add value to the amount of $30,000. On appeal, what is the characterization of the licence? Court concluded that:

(a)Nature of a licence – did the licence confer a bundle of rights? Yes. It gives the holder rights. It is a present right to work in the future. P.326, and is a right that will continue as long as the holder can perform.

(b) Nature of right causes “insurmountable difficulties… purposes”. Why?

(i) It is not transferable. It is different from a professional practice that is capable of valuation and transfer. Definition of property

(ii) CA said the definition of s.4(1) is broad, but not so broad to include work by either spouse into the future. Without personal effort, the licence produces nothing.

(iii) The right to work in general is not an attainment of property and does not fall within the definition of property.

There is difficulty in valuing this. It would be ‘unfairly speculative’ p. 327. You would have to make an assessment of intangible assets: inclination, the probability of success in the practice?, the language of physical or mental capability to perform?, to what extent and how can you measure competition within the profession, unforeseen circumstances.

Putting all these features together, the court found, p.328, that licence could not be property.

Note: The wife advance the argument that she had a constructive trust on the interest of his licence. But, since

it wasn’t property the constructive trust argument doesn’t apply. Her second argument was, if it didn’t go into his NFP, s.5(6) is a back door. This allows a judge to

fiddle around with the calculation provided it is found to be unconscionable.

It might appear as if the doctor was off the hook, but no. the court of appeal said that under the Divorce Act, s.15(2)(6), p.329, they affirmed the trial judges lump sum payment of $30,000.

s.33(9)(j) – FLA – factors for making a spousal support award. A factor for making a lump sum support is the spouses contribution to the other spouses….her contribution to his potential.

NOTE : A professional practice is a business. Don’t confuse this with a professional degree or licence. P.350. Valuation of a business is the challenge – not whether or not it is property. It is property. The challenge is ensuring a correct valuation.


CONCEPT OF NOTIONAL DEDUCTION : WHAT GOES INTO NFP:

Notional Deduction : the cost that a property owner would likely incur in the effort to convert a piece of property to disposable cash.

E.g. the wife when the parties separated, v-day, owns the home. Her name is on title. You create two piles. Take the picture. The homes value goes into her pile – say $100,000. She says that she doesn’t own $100,00 0 in equity. If she were to sell it, she would have to incur costs to get rid of it (e.g. reals estate agent, lawyer, etc.). She wants to make her NFP as small as possible. The question is can she use notional deduction? In the definition of NFP, it doesn’t talk about the concept of notional deduction.

It may apply to a pension or RRSP.

Sengmueller v. Sengmueller

At trial, the husband was ordered to pay an equalization. He tried to reduce his NFP and the judge allowed it. Wife appealed it – and C.A. dismissed that.

C.A. made reference to age and state of assets to the point of view of eminency of the disposition of his property. How eminent is it that there will be a conversion?

Court said that as a matter of fairness, disposition costs should be shared by the parties equally. P.356. However, you must look at each case on its facts. You must look at the nature of the asset and take the evidence that has to do with probable date of disposition. If it is the family farm that the husband owns, and he is a 9th generation farmer and he works the farm, do you think that it will likely be sold? No. No real probability of sale.

The court also considered probability of sale. It gave limited recognition to notional deduction. Made reference to McPherson authority. It dealt with

tax liability tatt that husbands would suffer in shares of a private company once they were disposed of. Here, CA extended the notion for tax deduction. This case raised a proviso that a court should always be cautious with a notional deduction and should not apply it if it is not clear if there will ever be a sale.

In Sangmueller, the court looked at his age, asset in question. Looks at Starkman – RRSPs. Trial judge disallowed both of the deductions.

Notional deductions are recognized despite the absence in the FLA, looks at the circumstances of the case, must be an eminency to property disposition, and the suggestion of sale cannot be speculative. ND are important because they are commonly overlooked. If overlooked, you will be sued as a lawyer.

Deductions and Exclusions

Nature of Pe-Marital Deductions. PMD is the value of property owned before the date of marriage with the exception of the matrimonial home. If you bring the home into the marriage, you loose that credit.

Folga v. Folga – exception to the general rule.

1971 parties married, separated in 1984. The husband brought a home with him. He owned it before he married. The facts reveal that later during the marriage, they sold the home. It was that second home they were in

when they separated. The husband said maybe he would get the PMD for the first house.


The trial judge found that the PMD was available to the husband. Findings: Entitled to the equity in the home. Why? because it was not the matrimonial home at the time they separated. S.18 is in PART II of the FLA. This has to do with the matrimonial home. What about a debt secured against the value of the home that is brought into the marriage? And is

the same home at the date of separation. There is no PMD for the value of the home. What about the day he brought the home into the marriage, it had a mortgage on it? Is the mortgage to be figured into PMD? DeCosta.

DeCosta v. DeCosta

If the home was a PMD for its equity value, it would help the home-owner because it shrinks the NFP. But what about a debt on the home?

At the time of the marriage, the home was encumbered by way of mortgage. The wife asked whether the husband was required to included the mortgage in the value of the property on the date of marriage?

The debt was the mortgage. Given the value of the home at date of marriage could not be…, if he had to reduce the debt without the

value of equity it would… The wife’s objective was thwarted.

Contrasting decision:

Menage v. Hedges

Pre-marital debt which was deducted. The debt was not secured against the land in the form a mortgage. That is the difference.


October 2, 2002 – Wednesday

Handouts – page 2-5 – answer to the Lou and Lisa problem. Second grouping consists of 3 pages and is entitled, “Pre-Marital Deduction Problem”

Lou & Lisa Problem: Do each spouses NFP separately.

DeCosta v. DeCosta

A deduction occurs in the context of a pre-marital deduction. You don’t get the benefit of the credit if you own the house prior to the marriage if you use it as a

matrimonial home. What happens with the debt on the home? If the debt on pre-marriage is connected to the home that you can’t take credit for, then the debt is not to

go to reduce the premarital deduction.

Mittler v. Mittler p.361

Mrs. Mittler was imprisoned in a concentration camp. She was to be given a pension. None of the monies were paid to the wife until after she was married. A serious problem for Mrs. Mittler was that when she got the money, she didn’t segregate it (she did not

put it into a separate account) 4(2.5)- if you get damages, if you can trace it through to something else, that is likely excluded property. The first question is, “whether the right to receive the money constituted a form of property.” Court concluded that reparations of this sort constituted property. Even though no payments were

received until after the marriage, she acquired the right to receive at the time of marriage. P.361 – mid point. Wife advanced the view that these reparations constituted damages. S.4(2.3) – excludes damages. Court determined:

1. There was a first sum of money - . This was a sum clearly referable prior to the date of the marriage. It was a damage award she was entitled to prior to the marriage. It was therefore a pre-marital deduction. If it is a PMD, as opposed to exclusion, you don’t have to worry about what happened to it after the date of marriage. All you had to establish was that the thing existed and its value.

2. The second sum was $30,000 – paid during the marriage, prior to the separation. It was reparation in the form of a pension. She said it represented damages for her incarceration. There was a practical problem for her. She has some trouble created the paper trail – the documents to show when the stuff was received and where it was traceable as of the date of separation. That is the difference between the PMD and excluded property. You have to find something on the date of separation. It was her problem, s.4(3) – her onus.


3. 4(2.5) – Tracing it. She pointed at the Canada Savings Bond. She said that is where she put the money, but she didn’t produce the paper trail to prove the money went to that. The court was prepared to do back-flips because it said that the $30,000 represents damages. The court called it a Pre-marital deduction.

4. The final sum - $18,000. The court said that it was considered money paid after v-day and was a stream of income that could be traced and thereby excluded.

This case demonstrates that:1. Onus of proving a deduction is on the person claiming it.2. It requires an inclusive paper trail

P.363 – Mr. Mittler said that he had Pre-marital property. He wanted the court to use that as the v-day value.

Court said, “growth in the value of assets in excess…equities.”

Oliva v.Oliva

This case looks at Excluded property – gifts. S.4(2.1). & s.4(2.2) & the idea of what happens to the appreciation in value of something that may be excluded property?

Husband was in a business with other family members. The other family members provided him with cash that was the down payment on land. He acquired them by way of gifts – the down payment was gift.

These rental properties had mortgages on them. He got rent from them and used the rent to pay down the mortgage.

It was land and the value of the land was appreciating over time. How did the trial court approach the question of whether the rental:

1. As to the property he acquired before the marriage, he had a PMD.2. As to the property acquired after, the court allowed an excision but only to the value of the gift

for the down payment.Court of Appeal said:

1. No issue about the entitlement to deduct for PMD. 2. Any gifts received at the date of marriage that persist in value are excluded property. In calculating

the value of the exclusion on v-day, you can exclude appreciation in value in the property but not to any increase in value that was the result of re-invested income.

The equity was improved because the payment down on the property. This case tells you that if you have excluded property and you leave it alone and it appreciates in value

naturally, then the whole value is excluded. If there is some manipulation in value, then you are in trouble. Remember he could not use 4(2.2) – because they didn’t make it in writing.

It brings home the onus of proof.


Ho. v. Ho

Husband’s parents gave $200,000. The question was who did they gift the money to? Husband, wife, or both?

Husband claimed it was a gift to him. The paper trail goes to her – but he said it was really his. She argued it was a gift to her. The court concluded it was a gift to her. After she got the 200,000, she lent 146,000 to the husband. What does this do for v-day calculations? The 146,000 in the husbands hands is a debt. The debt is owing to his wife. So, he wanted this to be

included in the wife’s NFP. The court had to struggle with that. The court used s.4(2) to do two things. It characterization the balance of the money remaining between

the two as an excluded. The whole of the 200,000 was a gift. The husband wanted her to have that accounts receivable as an asset in her hands. Court looked at section 4(2.5) – if you have excluded property and you can trace it to v-day, the value on v-day is excluded.

He does get to use the 146,000 as a debt, but it doesn’t matter because he owes her an equalization. It doesn’t affect the debt. It makes you careful of ensuring that although something takes on a different guise, if it is traceable it can work to the benefit of the wife in this case.

Smith v. Smith

Workers compensation payments. Are they compensation for lost earnings or damages? The wife was in receipt of workers comp. She said that under 4(2.3) that this whole sum received were

excluded property representing damages. The wife made a claim to workers for an injury in 1989, p.367. two parts: There had been a lump sum payment of $9,800 – these represented compensation between 1989-1994. Secondly, for the period of 1994 forward, the court determined she should receive a monthly payment of

150.00. The wife elected after separation to receive a lump sum of $30,000 instead of the monthly payment of 150.

Husband said all was property and should be included in the NFP. The court found;

1. The wife’s right was a right to receive disability benefits. Disability benefits still constitute property as defined under FLA (Yee authority).

2. A worker’s compensation board award is paid for loss of earnings. Further, it is not paid for compensation for disability.

3. The court having determined that the compensation was for loss of earnings and not for disability, these monies could not be excluded under s.4(2.3).

4. The court’s treatment of the monies she received. She received two lump sums. $9,800 paid prior to separation therefore it is before v-day and it constituted property and gets fleshed through. As to the $30,000, the court assessed two considerations. First, the second lump sum payment was in lieu of a future income stream. Secondly, it was a sum paid after the date of separation. So, it didn’t fall within her NFP.


The whole area of matrimonial property division has three parts to it:1. Statutory scheme of NFP. That is the FLA.2. Variation of Equalization. If you don’t like the equalization, can you vary it. S.5(6)? How

does this section operates?3. Application of Trust Doctrine. We step out of statutory scheme and look at common law

remedies.

Variation of Equalization

s.5(6) – gives the court the authority to vary equalization. p.380 Note – you can’t have recourse until you have done all the NFP calculations and determine equalization. You must do the NFP calculations first. Once you find out the equalization, to unlock the door to s.5(6),

you must address a threshold test.

Threshold test: “unconscionable”. Must prove that to equalization would be unconscionable.

How do the cases approach this threshold test? p.380

Ferguson v. Ferguson

The wife had an NFP of $128,000. But the husband’s NFP was $0. At some point, they placed the title to all their substantial assets in the wife’s name. The husband was a dental surgeon, but his licence was revoked. He had engaged in appeals, but

licence was revoked. He incurred onerous legal costs, and as such declared bankruptcy. His ability to earn a good income was lost. Bankruptcy eradicated debt, while the wife’s assets were protected. The court made an overall conclusion, p. 381, “I heard no evidence to suggest that the debt

accumulated by the defendant was …negligence.” The wife argued under S.5(6). She asked the court to look at part (b) & (d). She said her husband

got into heavy debt, equated with recklessness, impoverished the family. The court did something of the survey of the these in caselaw:

1. The fact that equalization creates a hardship on a spouse, hardship does not equate with unconsciounability (authority is Arndt)

2. Even if the equalization is inequitable, but not unconscionable, s. 5(6) will not apply.(Fenn is the authority)

3. There is a trend requiring malafidas – reckless disregard for how it will damage the family scheme. ( Berdette is the authority)

4. The court found the language of the statute puts a very high threshold on the unconscionability test which must be met on the evidence. (Kelly authority).

5. If you want to equate unconscionability, equate it with shockingly unfair. It must be so grotesque in its result. (Kelly is the )

6. The wife argued that he impoverished the family – not enough though.


7. Thompson case – looked at one spouse incurring debts. The court distinguished that that there is no evidence of bad faith. He was legitimately trying to restore his profession. P.382 “the respondent ahs at all times tried to work…unaffected:

8. The wife suggested negligent conduct and that negligent conduct was a reckless depletion of his net family property. The court would not put those conclusion together – p.383 – “in interpreting recklessness, one must consider…conscience of the court.” The court would not make that finding.

She failed to achieve the threshold test. P.383 – there was no secrecy or conspiracy in the debts he incurred. Court directed there be equalization.

Discretion. The court said that it is clear that the legislature intended to remove the discretion. They put in a scheme to provide for uniformity and consistency.

Mittler v. Mittler

The wife decided to rely on s.5(6)(d) – recklessly depleting the property During the marriage, the husband had gifted share assets in the business to his son. That reduces his

NFP. She doesn’t like that. When they calculated the NFP. Husband 1.2 million, wife was 100,000. She pleaded that he had intentionally depleted his NFP by gifted the property to his son Court said no:

1. Must look at the entire circumstances. He started gifting in 1970. This gifting was in place over a long period of time. It was a share transfer to his only child. He wanted the son to take over the business’

2. The evidence demonstrated that the husband was the key person, but the son also contributed.

3. The husband had been equally generous with the two daughters of the wife.

Concluded:1. There was no intention to deplete his NFP in order to hurt her.2. There was no mala fides.

s.5(6)(e) – short marriage – 5 years. (NOTE: last class he said 3 years, but it is 5)

Futia v. Futia

Parties married 1986, separated in 1988. Husband purchased the home in 1986 before they got married. The value of the house increase

substantially. In the course of the marriage, the husband assumed the whole of the burden of costs. He paid for

everything. While they were married, he beat her up regularly.


She left. Period of co-habitation of less than 5 years. She wanted equalization and he said no. He raised s.5(6)(e). The court limited her share of the equity in the home to 40%. She didn’t get her full equalization. How? Why?

Conclusions:1. The court considered that it had a discretion.2. The facts in support of the husband included (a) his acquisition of the house. (b) he paid all

maintenance costs. 3. When faced with this argument of s.5(6)(e), she said of course it is short, she had to leave to

protect her physical well being. 4. Despite the wife’s argument, the court said that FLA – the lawmakers wanted judges and

courts to get out of the business of assessing spousal conduct in determining . the court wanted to avoid a conduct of the spouses assessment when dealing with property divisions.

5. They had recourse to it and limited it to 40%

Faults with the conclusion:1. No doubt that all of the legal reforms have been designed to avoid assessing fault behaviour.2. it seems to be inconsistent with the act and with the intent of equalization. That a husband by his

own behaviour can take advantage of this section. It seems inconsistent with the definition of premarital deduction. It seems he is going through the back door because he can’t get in through the front door.

He thinks that this is an odd case.

Waters v. Waters.

S.5(6) & s.5(7) If there is an interrelationship between these two sections. S.5(7) – Three Responsibilities:

1. Financial Responsibility.2. Household Management.3. Child Care

You don’t have to have an equal sharing, but what happens if one of the spouses doesn’t do anything?


October 7 th , 2002 - Monday

NFP and Equalization s.4-5 FLA.

Waters decision on pages 385-387. There is an interplay between the courts interference with variation, permitted at s.5(6), and the operation

of s.5(7). s.5(7) states that there is some equal contribution and whether they include house care, childcare,

financial provision. 1. Plainly in years before separation, wife contributed the greatest of the income. Made the greatest contribution prior to separation2.No question of fact in dispute, husband was an alcoholic. Used own employment funds benefit of supporting habit.3. Irresponsible with money. Wife over course of marriage managed funds she had for the benefit of the family.4. Borne the greatest burden in homecare. It was a long-term marriage, and no children born.

Wife applied for an unequal division - didn’t want NFP; she just wanted greatest portion of the pot. The Court found that the wife’s contributions, assessing financial provisions and homecare there was an

acknowledgement made greater contribution and reluctant to make global assessments about financial provisions and childcare.

Court concluded s.5(6) FLA allows court to interfere does not operate with s.5(7). Its determination is on threshold and factors enumerated. Those of the guiding tests.

In looking at 5(7) he concluded that it defied common sense to believe that parties were equal in financial provisions, childcare, and household management. It is not practical in marriages.

Conclusion that s.5(7) was a statement of public policy. Deemed notion of contributions is the rational for the equalization scheme found at s.5(1). Concluded dif in contributions spouses make to household management does not bear on s.5(6) b/c there

is a single threshold test for the operation of s.5(6) is the language of unconscionable, which is the deciding factor to operate s.5(6).

There is not a connection btw these two sections. Departing from equal division should be extraordinarily uncommon b/c litigation cost is onerous, and promote socially destructive litigation. If you have parties nitpicking over 20 yr marriage, can imagine HOW LONG trial would take.

Concluded that, despite alcoholism, that by itself was insufficient to amount to threshold test of unconscionability.

In terms of courts conclusion, in her argument, the wife advanced that s.5(6)f gave her assistance. It stipulates if one spouse gets more debt, it may be a factor in determining unconscionability and interfere with equalization.

(she did not have mountain of debt, but she argued over historical terms of their marriage, she incurred debt to pay expenses) = did not fly, moreover court said even entertaining the idea would make court undergo massive accounting task.

To do historical accounting task would be a waste of courts time Looking at all of the wife’s arguments, in an accumulative sense, she did not meet the threshold test.


Waters says independence and distance between s.5(6) and s.5(7). Does not want to undergo accounting task of calculating household task etc.

Lablanc Divorced 25 yrs later. Her maintenance of it, done by her own effort, built company up. Throughout marriage, she borne entire burden of supporting family and her effort that financial provision

was available to acquire house, cottage, auto. Husband without issue was an alcoholic, his contributions were infrequent and occasional.

Wife saw in effect unequal division in her home NB. She said to the judge that the husband made NO CONTRIBUTION to childcare, household mgmt or even household provision.

Wife appealing, and she was successful. P388 bottom. NB provision she relied upon. This is a counterpart of s.5(7) FLA. This case has implications in Ontario.

The Court restated the general proposition of the statute FLA, of the statutes across the country that there should be a equalization scheme that should be the norm applied. Legislature establish rules and not for judges to depart from that.

In referring to Silverstein authority, EXCEPTION to the rule… Court should depart when there is an inequity of statutory factors.

SCC starts analysis p389, even in circumstances where the court departs from the rule of equal sharing it does not mean that court should put itself in a position of making fine distinctions respecting contributions that spouses made during marriage, in short SCC message is that TJ is to avoid day to day accounting and NOT to be looking at the ledger, journal as it evolved over 20 years. At mid p389, where property acquired exclusively wholly from efforts not negligible contributions, then in my view there are circumstances in my view relating to acquisition maintenance and improvement of property that allows the exercising of court. (close to s.5(6)h)

The judge found in favour of Lablanc and SCC in looking at all of the evidence, satisfied of singular conclusion. Wife contribution overwhelming, as to all aspects of s.5(7) or s.2 NB statute. She was the only person making contribution to a: household mgmt, b: childcare, c: financial provision.

Mr. LaBlanc did not lose his entitlement to an equal division of property, simply b/c his wife made a substantial greater contribution, he lost to an equalization b/c he made NO Significant contribution.

He should not be able to share in benefit produced by the family unit.

****on exam****Court attention focused on the issue one spouse abdicated responsibility in Family Unit. Should look at reasons for a spouses failure to contribute. Lablanc raises the questions :

1.Should the reason for no contribution require an element of MALA FIDES? 2. What do you do when the reason is as it was, alcoholism. 3. To what extent does Lablanc open the door to good and bad conduct in

determining who gets what in the property? Socially destructive litigation? Like decision of Waters.

Economic misconduct is relevant. What is the difference btw physical illness and mental health? These are questions raised in McCloud

annotation directs a criticism at SCC in affect not adequately addressed that issue. This is a collection of problems that Lablanc decision has unleashed.

Someone chronic mentally ill no difference btw physically ill. Dicy for alcoholism.


Berdette 1, Berdette 2 decision p390-2, incidentally includes:

Trial decision and Court of Appeals. Marriage 76 – 84. Made it work and spin was that wife was beneficiary of an estate. Lots of money on

an annual basis. Husband had worked from time to time but wife provided most of income for family to live.

At some point during cohabitation, he decided to quit work and attend university. Wife supported decision and funded by the inheritance monies.

She is also providing provision to support family and household and children. Additionally, there had been matrimonial home purchased and when did paper trail, money from home

traced to joint account but it was money from inheritance. Mortgage was discharged from inheritance money, husband though having difficulties didn’t want to live in cottage unless in both of their names. Home and cottage in joint name.

Separate, launched application for variation. Variation in her favour and the variation sought by her under s.5(6) and s.5(7), she contended that it

could be unconscionable b/c her greater contributions. The judge considered rationale for looking at connection btw s.5(6) and s.5(7) annunciated in Waters

decision. Court held in Waters, a departure in equal sharing could not be made on gross disparity even

unconscionable. Made following assessment , the reasoning of Waters are extremely persuasive because they implement view that purpose of FLA was to remove conduct and contributions to the marriage as who put what when …

He felt good argument for adopting waters, but looked at SCC and looked at Lablanc decision and states p.391 looking through Lablanc and McCloud annotation, and therefore in applying Lablanc, required to look at the contributions but then offers a new twist in looking at assessing gross disparity issue of contributions as a consideration. Gross disparity is a factor ONLY IF the failure to contribute is MALA FIDES. Looks at McCutcheon, etc.

That suggestion is in contrast to notion argued by McCloud recited at p.392 at top part where he suggests that the reason for gross disparity may not be relevant. McCloud in his annotation, although willful and intentional refusal to justify equal contribution what if it results from illness… Easier to read in mens reas, it only talks about failure to contribute. Failure to contribute in Leblanc b/c of alcohol. Physical or mental disability should not contribute to failure to contribute…. Justice assessed that but he recognized the necessity of recognizing mala fides… in assessing.

Looking at intention and ability important … it would be unjust if did not look at it. He concludes: if one spouse unable to contribute because of illness then gross disparity would not affect

property division except when there is mala fides… and affect division of NFP. There was an abdication of his role in pursuit of education for Mr. Burnette, and concluded equalization

created an unconscionable result and stated in this case, NFP would be shocking and redress in favour of Mrs. Burdette.

Problem was title sharing. There are 2 instances of GIFTING property to MR. Burnette. Court satisfied that circumstances at the time was a gifting. Cannot gift and take it back by unequal variation the next.

Court not allow variation as it applied to home and cottage (2 largest assets) Allowed variation in other assets. Wife not happy and launched appeal. P392-4. She lost appeal.


Court again found: 1. Could not gift and later say it was unconscionable.

2. She has bigger problem, in NFPs the NFPs were the same, and equalization was nil. Cannot get to s.5(6) unless there is an equalization. Therefore appeal failed.

Access to s.5(6) right to ask for variation requires that you must do NFP and there be an equalization to vary.

Heal v. Heal (1998) (Ont. Gen. Div.)

Stresses extreme prejudice. Stresses acculated factors.

Undisputed facts of a 20 yr marriage included:1. Wife assumed greatest burden of household management. More onerous b/c of chronically ill child.

2. For some considerable part of marriage, in addition to take care of house, worked outside of home earned an income and made financial contribution to all of the three major functions in s.5(7)

3. the husband contribution was singular – financial -, except 6 weeks residential treatment, worked consistently throughout.

4. During the marriage, there were three property acquisition to note. $58,000 acquired by wife in inheritance and to purchase matrimonial home. (no excluded property benefit). Van purchased and various improvements to van from a second inheritance of $90,000. A fair amount went into van from the inheritance. Throughout marriage, husband built up sizable savings in a bank account.

5. Finally, there was never any evidence at trial of allegation of mala fides or malicious conduct. Not hiding the monies.

Not happy with EQUALIZATION. She sought a variation specifically she looked at s.5(6)c but more importantly part h.

Court rejected her argument. Court found the term unconscionable creates a standard, it is beyond mere consideration of fairness. Does not amount to unconscionable. Court said it is not a matter of reasonableness or fairness in figuring out threshold.

P395-6 entirely consistent with caselaw. In determining unconscionable, must look at a: all factors in s.5(6) a-h to see whether they exist.

B: if one of the factors exist, must access magnitude to determine whether to make equalization would be unconscionable. C: There is a cumulative affect in assessing a-h, (waters test p.396).

Wife failed, may be unfair, unreasonable but fair and reasonable are NOT the test for unconscionable. No evidence of recklessness, or intentional incurrence of debt or reckless conduct.

Series of cases to show the door s.5(6) must be very TIGHTLY controlled. The reason for this is: if the door is wide, then everyone would want to vary equalization. People do the formula, settle property, and stay out of court.

S.5(6) for extraordinary circumstances. If you look at p396, Makes reference to s.5(6) of the Divorce Act, suppose to be FLA>

P.264, cases involve application of trust doctrine in division of property. Why is it relevant? Trust doctrine used in determining interest of a non-title spouse. Particularly looking at property value increases after v-day and prior to date of trial.


Use trust doctrine in determining property right

1. Between common law spouses and in same sex partners. 2. Important to these because there is no access to NFP. So, they use the trust doctrine.

3. Property disputes between third party persons prior to v-day triggering event.

What and how they operate (trust doctrine):

Rathwell v. Rathwell (1978) – no NFP in the early 70s. Facts:

1. Lengthy marriage, 34 years. 2. Wife made contributions dumping money into Joint bank account. Monies taken by husband to buy

land but it was in his name. 3. Additionally, wife made contributions by working the land (farm lands, milking operation) 4. Separate and initiated action. She wanted a declaration of half interest in property. (only way of

getting monies, by declaration)

Court being asked to use Trust doctrine to assist wife. Court look at how it operates and the context of operation. Recited

a) Starting point when looking at couple is to look at the doctrine of the unity of personality. (hubby and wife become single entity.)

b) In wake of doctrine, legislature responded with legislation of married women property rights. c) Discussion about evolution of matrimonial property law and relaxation of the application and

principles.. married couple should not be recognized as strangers, but states if there is no clear guidelines, can you import the common law rules for dividing property.

HE said, must assess normal situation of common division problem in p.264, what is the common features for intervention:

1. Contribution of money into property.2. Monies worked to property (labor)3. Contribution acquisition of property can be direct (money out of account for down payment, or pay

to mortgage) or indirect (payment of other expenses in the property, improvements, maintenance).4. Property required couples while happily married cohabitating5. Seldom any express agreement about what happens if there is a division of property or if they split.

(they don’t enter into marriage contracts)6. Common intention is to keep living together and acquiring property and using to benefit of the

family.


Once a court appears on the scene, separate, what discretion if any does the court have where there is no legislative enactments. Do they have a discretion? YES, are there limits? What are they? Limits are as follows:

1. Where parties do have an agreement, marriage contract, what would happen to property, obliged to respect it.

2. Absent any statute enacted by legislature, there is no automatic family assets division doctrine. (p264-5)

3. Limits, courts discretion to create division turns on the spouses contribution and so where contribution to acquisition of maintenance of property, where unequal, the shares should be unequal.

4. The common law in Canada, does not recognize community of property arising out of marriage. Cannot apply California laws no matter what.

Defining features, look at what application of trust doctrine; 2 focus on.1. Doctrine of resulting trust2. Doctrine of constructive trust

A resulting trust will be presumed in favour of a person who is to proved to paid purchase money to property… (but title taken by another)

Resulting trust have intent inferred in circumstances of the case. On a marriage, absent an express agreement, that addresses intent, a court must look at the circumstances

surrounding acquisition of property. If it asserts trust which he does not have title, the question becomes did she./he contribute ?

A presumption of resulting trust flow from the fact of contribution as evidence of an agreement. Courts are looking for a common intention by: acts, behaviour, words that property is acquired by title

owner as a trustee. If there is contribution of monies or monies worked, there is evidence by person not having title but no

evidence of agreement, the issue depends on that persons share. The question that is posed, extracted by Petitt case, ask what reasonable people in shoes of these spouses would have agreed if they had directed their minds to the question of what claim the contributing spouse ought to have.

The single most important ingredient, underpinning of the resulting trust doctrine is the evidence that allows a court to find a common intention. It is that intention as to property acquisition that engages the doctrine.

As a doctrine, it is merely a presumption, in order to advance it, you must have FACTS and the facts must be cogent and persuasive because it is rebuttable.

Where evidence of intention of presumed beneficial interest sharing cannot be found or presumed then resulting trust fails. Dickson freely acknowledges this p.268 bottom.

BUT in its place, something else may emerge. The alternative is the existence of constructive trust. The constructive trust has its own important feature.

1. Imposed firstly where intention is lacking and in fact 2. Irrespective of intention (against wished of one of the parties)

McDonald Case, referred to where constructive trust was imposed on person against person unwillingly.


Features of constructive trust:

1. Routed in principle of unjust enrichment – to an equitable duty to convey on ground that he would be unjustly enriched if he was permitted to retain it. (Murdoch statement)

2. Court’s task in determining whether the doctrine of constructive trust fits is difficult where firstly there is no common intention or no facts upon which it can be presumed. But secondly, where there is factual evidence of a spouses contribution to family life (p266 discussion)

3. Constructive trust will turn on firstly, individual facts of case, secondly, wanted to repeat no reliance on strictly on intention. Thirdly, preoccupation is with insuring the prevention of unjust enrichment. Incidentally, Dickson first to come out and state doctrine of unjust enrichment not to be defeated merely because the parties are spouses…

4. The timing of constructive trust is uncertain, courts have found that it may arise when property is acquired, later on, or even after separation. Full discussion on timing is not in this case, but to note there is considerable flexibility.

5. Found that for Mrs. Rathwell to succeed, she must demonstrate a resulting trust, must establish cash taken out or succeed at constructive trust… succeeded at both.

Pettkus v. Becker Case

Appellant man, developed a bee keeping business acquired land. Respondent woman for a long period of cohabitation contributed money and work into bee keeping business.

First time on the scene, involved parties to a common law relationship. No legal liability, they saw this as an opportunity to avoid legal liability Period of cohabitation – 19 yr period, never married. She sued for declaration that he had a trust carried for her benefit. At trial, application dismissed, successful at Court of Appeal Goes to SCC, Dickson refines discussion of resulting and constructive trust. He focuses on English

decisions. Peddick and Gissing?(sp) These English authorities support ides of judicial quest and search for common intention to make out a

case of beneficial interest (p268 discussion) He is cautious and noting that English authorities should not impute an intention unless it is supported by

the facts. TJ should not feel free to impute and may only do so when there are facts. Failing that, trust doctrine should not be engaged.


October 9 th , 2002 – Wednesday

Pettkus v. Becker (cont’d)

Bottom of page 268. English cases no distinction btw various kinds of trusts. Makes this conclusion at p268-9.

Dickson concludes in Canada cases, there is indeed a clear distinction in construct of resulting and constructive trust.

Resulting trust distinguished by requiring finding in Rathwell of common intention. Having posed question, focuses on what is evidence of common intention. It is often the conduct as

presented in evidence btw two spouses throughout cohabitation, financial arrangement as it had to do with acquiring or maintaining property.

At p269, midpoint, he talks about including within such conduct looks at indirect or direct contributions. (indirect – other expenses, food etc)

He does conclude that if a person’s conduct about property acquisition of property is ambiguous or tenuous, then clearly resulting trust will not be applied.

The judge had found NO COMMON INTENTION. Rejected application of resulting trust, C of Appeal did not overrule the finding. But SCC felt that they underrated her contributions over the number of years.

SCC paying deference was not prepared to allow for resulting trust. Dickson notes remedy of constructive trust for unjust enrichment. P.270. He makes these

conclusions: ** on exam **

- Stipulates court should use constructive trust to avoid unjust enrichment. BUT evidence must support finding that unjust enrichment would be experiences.

- The ingredients that must be present include; a) must have enrichment to one party [enrichment, he was enriched by contribution of labour for 19 yrs of unpaid labour, 5 yrs of which she wholly supported him] b) has to be a corresponding deprivation to HER. [from a she provided him with unpaid labour and deprived of getting paid elsewhere] c) there must be an absence of juristic reason for the enrichment. [if he hired her as an employment, even what he had paid her was less than what she is worth then there is juristic reason. B/C a contract]

- This case distinct from Rathwell, Murdoch, deals with persons who are unmarried, common law spouses.

- Rules for division of property deal with Married people. Usually dealt with by legislation.

- Court discusses, at p.272, concluded no distinction between married couple and common law relationship as to whether trust doctrine could govern division of property. Because trust doctrine to remedy a situation where unjust enrichment would apply.

- The Court did emphasize that this was a LENGTHY relationship p272, “I see no basis in distinction btw married couples which subsists for a lengthy period… Not a casual encounter, business relationship. Their lives were fully integrated. Trust is broad and general and prevent unjust enrichment…”


CONCLUSIONS:

1. Dickson stood his ground that equitable remedies in law, stand independent of statute.2. careful to denote, cautious to send signal that there was no presumption of equal sharing of

common law relationships… CAREFUL TO AVOID THIS. Just application of trust doctrine if evidence support it.

3. He was not directing equal sharing btw common law spouses, only recognizing in a property declaration of a contribution of labour and labour works over a period of 19 yrs.

4. Constructive trust fit, and made a declaration.

Further opinion of Ritchie, he was prepared to interfere with TJ finding of common intention. He was prepared to overrule that, to find there was a common intention and as a result, would have applied a resulting trust.

At the end of the day, Becker went through a trial, C of Appeal, SCC hearing and won hands down and entitled to a judgment. Mr. Petkus did every technique over 3-4 years to get as his property. She was totally impoverished and a few years later and killed herself.

Sorochan v. Sorochan, p. 274

Expanding limits of the application of trust doctrine. Facts: this was a relationship of 42 yrs. Long term period of cohabitation, not married. The man owned

the farm that the two worked for 42 yrs b/f he got married. While they were married, she took care of the children, house, all chores with the farm, but farm was purchased by the man BEFORE marriage.

When they separated, and launched application for trust and declaration of interest in the property. He said she cannot find unjust enrichment because he brought the asset in its entirety to the relationship. His distinctive argument from Pettkus was – there is no connection btw the labour put into property and the ACQUISITION of the asset, b/c acquired b/f getting into the relationship.

Woman successful at trial, 1/3 interest. C of Appeal, sided with him b/c work had no connection with getting the property. She took it on to SCC.

Dickson for the majority, p275, he restates Constructive purpose… Woman must prove that he was enriched, deprived, and there was no juristic reason.

Dickson pronounced in reiterating, to prejudice themselves a reasonable expectation of return and other person must know that.

He argues, he never asked her to do it and it was a gift… DOES NOT FLY, b/c there is a reasonable expectation test… for man to appreciated that she would expect something in return.

Cornerstone to his argument, there has to be a CLEAR LINK on evidence btw contribution and acquisition of property. Court says NO. Court broadens it. Constructive trust has flexibility, and it should not restrain it to property acquisition.

The contribution to property to support Constructive Trust may relate to the preservation, maintenance or improvement of property. [beyond just acquisition]Most important, services had a proprietary relationship [was labour or contribution connected to the property to its preservation, maintenance, improvement].

He reviews evidence, and finds that 42 yrs of labour contribution apart from raising the children and matrimonial home, was both direct and substantial and it was to the contribution to the maintenance of


farm and prevented asset deterioration. [her labour directed towards protecting from asset deterioration, court said clear link to contribution and property]

PETER v. BEBLOW p278

**** exam **** This case distinctive feature is assessing the value of household management and child care as basis for advancing constructive trust.

The case also addresses appropriate remedy if trust is employed. [choosing btw property transfer or a monetary restitution award]

Met in 1973, at that time Beblow asked Peter to move in his home to affectively play nanny. Take care of children as live-in homemaker. She provided services for 4 yrs. She had 4 children of her own and moved into the Beblow home. She had outside of those duties had part time earnings and went into expenses of clothing and groceries. She also did work around the home. Court also found over the period lived together, man contributed substantially and maintenance of property. As the result of abusive behaviour, drinking, separated 1985. Total period of cohabitation is 12 yrs. Pettkus v. Becker was 19 yrs. Shorter period of cohabitation.

Assets involved: Beblow purchased home where they lived b/f getting together, over period of cohabitation paid off the mortgage. She acquired modest pieces of property. She sued him for constructive trust and an unjust enrichment.

End result, at time matter was tried, he lived on his houseboat. She lived in a trailer on welfare. The home was vacant. It had a value of $20,000.

Before the use of trust doctrine, she would have had NO CLAIM and gotten NO relief. That was the attraction for entering into common law relationships. Additionally, before this decision, Peter v. Beblow, most judges would have undervalued her contribution for household management and childcare. They would have done this because judges would not understood this as a value.

Lastly, Courts would have said no connection btw property and maintenance of property In trial, for her providing for enrichment, there had been a proprietary benefit to the house. He could not

have engaged full time job, earned the money, acquired the cash, paid the mortgage, and thereby acquired the equity in home but for her taking care of the home and his children.

The judge found, he was enriched, she was deprived, and there was no juristic reason. The judge decided to translate, calculate what that is worth. He did it on basis on what she was paid

initially for providing childcare services. Deducted ½ in order to recognize benefit she received. But noted she had no return for labour and labour worked = $25,000

Remedy applied by the judge was: assets available, considered monetary award was impractical. As a result, transferred ownership in the matrimonial home to the woman.

He took it on Appeal, BC Appeal, and then SCC, restored trial award recognizing Constructive trust and reward of home. The guidance determined is:


This is the SCC weighing in on Peter v. Beblow. 1. SCC as a matter of policy that there is no general duty presumed by law on a common law

spouse to perform work to the partner (for free). 2. The SCC, absent any other explanation, juristic reason, when common law spouse provides

work, that person can reasonably expect something in return. [why, b/c court wanted to end argument that it was a GIFT, p282]

3. McLachlin opinion did not go as far as to create a presumption of sharing of spousal like provisions.

4. p.291, McLachlin noted there is value in a domestic contribution. If there could be any doubt about the need for law to recognized domestic service, it must be banished in MOGE v. MOGE. **Homemaker services and childcare services without remuneration, made of their own give rise to an UNJUST ENRICHMENT. [not restricted to common law relationship, regardless of the relationship (same sex included)]**

Court provides guidance with appropriate remedy, choose between property transfer or monetary compensation. Transfer occurs where a) monetary unavailable. b) Sufficient link between services and property. [clear link services provided and property transfer b/c evidence shown in one argument, services provided in homecare, childcare of 12 yrs allowed Beblow to maintain job had.] Now form a basis for advancing constructive trust case. There is some broadening of rules for constructive trust.

Nowell v. Town Estate p294

Facts: Nowell and Town were lovers. They maintained separate residences and never cohabitated. He purchased farm on weekends. She provided domestic services and organized his social calendar. During relationship, he gave her artwork. He gave her artwork worth $120,000. The relationship after 24 yrs went sour. She had no job, independent means and asked him for 100,000 and he gave her some more artwork which she sold for $125,000. Over course of relationship got 225,000. He dies. She sues the estate which is worth $20,000,000-50,000,000. She sued and argued unjust enrichment.

The judge dismissed her action outright. The judge was prepared to recognize some contribution, but said she was enriched by him. By social and artistic function and gifts. She went to the Court of Appeal and displaced the judge’s pivotal finding of spousal relationship. P295, Court of Appeal, said the judge misapprehended the evidence. CA on evidence found that Nowell and Town had NOT been a casual relationship but had been a “quasi spousal relationship”.

Applied Peter v. Beblow, and found unjust enrichment from Town to Nowell and no juristic reason for enrichment.

Payoff = she wanted 20% of his estate. Court grappled with the payoff. Bottom p296, proper amount is $300,000.

McLeod annotation highlights:1. Was there any evidence of a relationship upon which a reward could be framed? TJ said

NO. TJ did not view Nowell and Town cohabitating, C of Appeal stated the relationship was not casual but quasi spousal. Courts should not use pretend legalize. At best, quasi mean sort of, like. If relationship was quasi spousal then it was NON SPOUSAL.

2. Determining amount, picking figure out of thin air no analysis in accounting sense.3. Unique circumstance based on its own facts.


With passage of FLA in 1986, did it displace trust doctrine? Access to Part I of the act, are you thereby barred from trust doctrine? Addressed in p330-43, Rawluk v. Rawluk.

Rawluk v. Rawluk

Long marriage, she worked the farm and full task of home and childcare. Pivotal of farm and farm equipment business they had.

Various parcels of land were acquired and added to farm. All property placed in title to husband. Wife contributed $7,000 by way of inheritance into their business operations. After they separated, the land he had title, experienced extraordinary increase. She advances argument to impose constructive trust to land which he had title. The remedy of constructive trust is displaced (his argument)

Conclusions:1. Remedial remedy, and important remedial devise. Its primary function is to remedy unjust

enrichment. In ensuring equitable division in matrimonial relationships.2. It is so important that had the legislature sought to deprive a class of persons then language had

to have been precise. P333.3. At this point, Rawluk being considered, in Ontario, there was a conflict in the caselaw. [Benke

dicta swept aside remedy, against TJ Rawluk decision]. Part of determination, ownership determination

4. s.10 FLA, (1)a, legislature stipulated for determination of his/her spouse to declare ownership or right to possession. Court says: This determination leaves room for constructive trust…a)Property interest result of constructive trust can be recognized to come into existence at any time when unjust enrichment first arose. b) outset when acquired or later when it dictates.

5. constructive trust is designed to confer something, an ownership shares as opposed to share in value. [once declared to have ownership , will share rights, privileges, obligations of property, as right to property increase or decrease after v-day].

6. Court posed question whether provision s.5(6) FLA, variation to equalization can be used on basis constructive trust dealing with post v-day increase/decrease on property to be unconscionable. Court not prepared to address the question on this case. It is UNANSWERED.

7. Final aspect, constructive trust may be IMPOSED on a reluctant party. Dissent of McLachlin p338-43. She makes reference to Macdonald case at p342. Rawluk recognized it does not displace constructive trust remedies. She was determined to be an owner… access to post v-day value increase b/c she was an owner. Macdonald case = where one party owned property, value of property after v-day decreased. The owner wanted the other spouse to share in the pain. He sought constructive trust. Can work both ways…

Rare occasion when you have recourse to s.5(6) where you ask the court to vary. Usually use Part I and do an equalization.

Maybe rarer still where married persons will reach out to remedies to constructive trust remedies.

For persons of same sex, common law relationship, only remedy is by way of resulting or constructive trust…[depending on case going to SCC]


Dc = 100 Dg

p > 0.99 D1 = Dg

p > 50

Ch. 5: MATRIMONIAL HOME AND POSSESSORY RIGHT TO MATRIMONIAL HOME

Introduction Moving now from matter to property division by way of NFP equalization or constructive/resulting trust

to a different area. Singular asset acquired by married persons. Most important property. Legislature was preoccupied with this asset creating an entirely different part to the statute. Started with FLRA 1978, but before this time, wife’s rights to live in the matrimonial home were

founded in common law on two grounds:1. Husband’s legal duty at common law to maintain the wife; and2. The wife’s common law right to his consortium.

This bundle of rights that she had to live in the home were personal as between her and her husband p456-7. [ these rights were not enforceable against 3rd party who acquired an interest in the home, if the home historically had a mortgage and husband hook for mortgage and default then the 3rd party could act on it and get the matrimonial home and wife’s right of protection did not help her]

The wife’s right to home ended if: a) marriage ended, b) death of the husband. c) if husband obligation to support wife terminated [if he committed matrimonial

offence – adultery.]

Points addressed deal with wife’s right to possess, occupy home. Distinct from exclusive possession. Exclusive possession is distinct, term applied where one of the two spouses has possession exclusively, and the other does not.

Prior to reform legislation, married person property act gave limited discretion if she could prove that she was deserted or abused. P456. But there was conflict with the law if jointly owned and discretion blurred.


Legislation needed to clarify in FLRA 1978, at that time created same as in Part II FLA. It covers s.17-28. These are the highlight points in the section:

1. Right to possession of the matrimonial home is equal, afforded to both, and without regard to title or ownership. S.19(1) FLA. [if husband or wife, can equally possess or occupy property] At Part II, same members as Part I, married persons. Everything to do with POSSESSION not NFP.

2. Right to occupy remains personal as btw the spouses. S.19(2) FLA, however, tempered. P458 as it revolves around discussion of s.19. The difference btw personal right immediately b/f 1978 and today deal with s.21 FLA. 3rd party creditors still can move in…on right. S.21 FLA says: cannot tamper with a single asset (matrimonial home) subject to certain exceptions. (cannot borrow monies on, rent it out, lease it if sole owner – encumber it without consent of the other spouse or court order)

3. Normally, the right to possess ends at time parties are divorced. S.19(2). However, s.24(1) FLA, which says: exclusive possession = not equal possession, means one spouse gets to possess and the other loses the right to possess. It is possible under s.24(1) FLA, rarely, for court make a permanent exclusive possession order.

4. The old law said that matrimonial offence (adultery) extinguish right to possess. Now, law states fault has little part to play nothing to do with possessory right. S.24(3) FLA a-f, recites grounds for throwing someone out of the home. Factors court determine to determine persons right to equal possession to matrimonial home.



(The Matrimonial Home Continued.)

Family Law Act Focus has been on part 1, ch 4-16. Rules for division of property – focusing on NFP and equalization. Part II - Part III – child and spousal support rights Part IV – domestic contracts

Part II – principal attention on the matrimonial home. Legislature has provided protections. Part II s.16-28 Tonight – cases that identify what a m home is, and those cases that deal with how the spouses right to

equally occupy the home may be equally displaced. S.19 – an assertion by the legislature that the right to possess, right to occupy, is equal to the spouses

regardless of who owns it. Title is no longer a defining feature with regard to possessory right. No longer can the owner eject the individual.

Spouse means married persons and not other such as common law spouses or same sex parties. First feature: That right to equal possession is personal between the two of them and doesn’t affect third

party creditor rights. E.g. the right of a bank to foreclose on a mortgage. Second feature: S. 21 – the spouse owner is precluded from encumbering the property without the

consent of the non-titled spouse, with the exception of getting a court order. In ensures a protection for the non-titled spouse.

Third feature: – the right to equal possession normally ceases at the time of the divorce. 19(2)(b). Possessory rights and displaces someone’s possessory rights is most imp. In the course of an interim proceeding. That means the time between the date of the separate and the time it actually gets to court for a final hearing. That well may take a long time. Who will have the right to occupy the home in the meantime?

Case law revolves around this is focused on interim proceedings. Permanent exclusive possession orders, is entirely a rare creature because if you start interfering with equal possessory rights, you will screw up the NFP formula and equalization.

Interim orders aqre the more common form. Fourth – misconduct, e.g. adultery, will play no part in displacing a possessory right. The feature that will govern displacement are found in s.24(3)(a-f).

IDENTIFICATION OF THE MATRIMONIAL HOME


The law makers were wary of innovative schemes in an effect to escape the impact. It created the widest possible net.

Part II, s.S.17 – Definition section. “property” – means real or personal property. No limitation – quite broad.

S.18 – definition of matrimonial home – Every property in which a person has an interest and that is or if the spouses have separated, was at the time of separation…

S.18(2) – Ownership of shares What are the important elements of s.18:

1. The use of the word property means real or personal property based on s.17, 2. To be a matrimonial home, one of the spouses must have a legal ownership or interest. It may be

tenancy or outright ownership. 3. The property of which one spouse has an interest has to be at the time of separation occupied by

the individual owner and the spouse with a user test - used as the family residence. In addition, spouses can have more than one matrimonial home. E.g. summer cottage. The user test is

flexible enough that you don’t actually have to be occupying the property.

Hartling v. Hartling

Two pieces of property. The first was a farm piece of property, on which the home was situated. The farm was in the name of the

husband. Issue: Apart from the building, were any of the lands adjacent to the building part of the matrimonial

home? Second piece of property was an apartment located in an apartment building. It had been occupied by

the husband and wife and the husband had a 50% share ownership in the ownership of the building. S.18(3) – property adjacent to the building itself that may be considered necessary for the use of the

home will be considered part of the home. Generally, caselaw supported the idea that around one acre would be considered part of the home. Mrs. Hartling wanted the entire farm property to be part of the home. S.18(3) allows to be included property that is reasonably necessary for the use and enjoyment of the

home. It could include a driveway that gives a right of way to the home. It can expand the definition of the matrimonial home.

Apartment – second property. What was proof of the legal interest? The wife wanted a declaration that it was his share ownership in the corporation that represented the

ownership.. TH court rejected that. The mere ownership of shares did not give the right to occupy. The legal interest must reflect the right to occupy. The right to occupy the apartment arose from the tenancy agreement.

The court established that the apartment was a matrimonial home, but not for the reason suggested by the wife, but by the Tenancy agreement.

In establishing legal ownership you must look for that interest which reflects the right to occupy.1. The importance of looking a s.18(3)


2. The legal interest must reflect a right to occupy.

Identifying the matrimonial home revolves around the intention of using the home:

DaCosta v. DaCosta

The property in issue was a hobby farm with a house on it. The money used to purchase the farm had been inherited by the husband during the course of the

marriage and he had acquired the property before valuation date. (s.4(2)(1) – the husband asserted the proposition that it was acquired by inheritance and you could trace it and the value should be excluded from his NFP).

The wife advanced the proposition that it was a matrimonial home and was not the subject of an exclusion.

The judge rejected the wife’s evidence, he commenting on the importance of intention to use it as a matrimonial home. Intention alone was insufficient.

Intention and Opportunity to occupy. Criterion of the Statute:

o 1. It Must have been occupied as a mat. Home. Actually occupied.o P.465 – “they may have intended to occupy it as a matrimonial home but they never carried out

their intention…”

Goodyear v. Goodyear

(Turns on the facts of a portion of the home.) A Granny Flat – could that be excluded as part of the mat. Home? The home was the result of an inheritance received by the husband (s.4(2)(1) – allows an inheritance to

be excluded unless it is the matrimonial home.) The husband said that there was a part of the house that does not fall within the definition. He wanted to

reduce the amount of value that he had to put into his NFP. The court was forced to consider s.18(1) – the definition. They focused on ‘use.’ The court had to assess the words ‘occupy’ and they rejected the husband’s argument. P. 466-467 –

“dealing first with section 18(1), I think the evidence shows here that the spouses did occupy…does not require constant or continually occupancy… nor every square meter…”

The argument of greater strength comes from the court’s use of the term family. It stated that the word family is not an exclusive word that leaves out parents or children or close relative.

Interpretation – court was not prepared to exclude this particular area. The term property is very broad in s.17. Step outside the box. A matrimonial home can take a number

of different forms. E.g. Notes and question 467, #1 – Clark found a sailboat constituted a matrimonial home. Legally married spouses – at the time of separation. By virtue of the broadness of the def of s. 18, the spouses may have more than one matrimonial home. S.21 – prohibitions on incumbering – without the consent of the other.


ORDERS FOR EXCLUSIVE POSSESSION - Displacing the Right to Equal Possession.

s.19 – regardless of ownership, both married persons have the equal right to occupy or possess. May that right be displaced? Yes. How? 1st, the parties may agree to displace one spouses right to possession ( The only contract to do this is a separation agreement s. 52(2))

How may a spouses right be taken away:1. By them agreeing to do so.2. A court displaces the right to equal possession – s. 24.

S.24(1) – regardless of the ownership of a matrimonial home and its contents, an despite section 19, the court…

S.24(3) – factors that a court is to take into account. It is not taking away a person’s right to ownership or one’s part I rights to NFP. It is taking away the person’s right to possess. The right to occupy is gone.

S. 24(3) – In determining whether to make an order for exclusive possession, the court shall consider:a) The best interest of the children affected. [Note: S.24(4) further defines what the best interests

of the child means.]b) Any existing orders under Part I and any existing… This is not likely to be a factor.c) Financial position of the spouses. It is easier to turf someone out of their home if they have a

good paying job.d) Any written agreement between the parties. (generally there aren’t any.)e) Availability of other suitable and affordable accommodation; andf) Any violence committed by a spouse against another spouse.

Three major factors:1. Best interest of children2. Financial position of spouses.3. Violence.

Best interests in competing claims:

An interim motion. Who will have exclusive possession on the interim? Having interim custody will likely strengthen the case at trial.

Best interests of children – what will be looked at:a) What is the evidence about the length of time that the children have actually lived in the home.

The longer the time, the more important the feature.b) Factors that assess the child’s attachment to the home. E.g. child’s friends, area of school, area

of daycare, engagement in neighborhood activities, c) What of the child’s attachment would be disturbed if there were a move?d) Other family and other relatives in the area? It could be important if they provided childcare.e) Express wish of the child . The older the child, the more weight will be attached.f) Suitability of alternate accommodation . What is available out there if the child is displaced?


g) Psychological stresses and strains that the child is exposed to if both spouses retain possession.

Pifer v. Pifer

Quality of evidence that must be marshaled. Two children of marriage. Husband had begun drinking. The wife obtained an ex parte order. The husband had no chance to respond. By the time he hired a

lawyer and had his responding documents ready, the wife had a number of weeks were she had the benefit of the order. She said that the court should not interrupt the status quo.

She wanted the ex parte order to continue. P.470 “ council for the plaintiff argued that pending cross-examinations, the status quo should be

maintained and that the plaintiff and children should be allowed to remain until the return of the motion. I have difficulty with that submission. …by deciding to jump the gun an obtain an order…”

Test: “what I must do is assess all the affidavits…” P.470 – mid point, under s.45(3) – Ontario courts are generally reluctant to remove unless there is

serious or weighty evidence…. Considerations:

1. The evidence was still persuasive enough of violence.(s.24(3)(f)). 2. The court’s broad view of bests interests of children – it should not be read restrictively and

narrowly to s.24(4). The judge had competing affidavits. But, there was enough in the wife’s evidence. Practical note – if you are going to ask for exclusive possession, your case will be more likely to win if

you have something more than your client’s affidavit. Here, the wife’s evidence was bolstered by evidence of the babysitter.

The very last line of the decision emphasizes that it was an interim decision – an interim interim custody. However, the longer the wife is able to maintain it, the stronger her case will be.

The court chose to do something rare – to make no exclusive possession order: This is not the norm. An order that no order is made may lead to harm and violence to children.

Perrier v. Perrier

The Parties relationship deteriorated. The husband alleged that the wife had used physical discipline very harsh of a adolescent daughter. Both husband and wife made a claim for interim custody and interim exclusive possession. Where and with whom was the child going to live? The allegations that the husband made about the wife, p.472. The wife denied the allegations and

suggested they were either exaggerated or distorted. The court was not dissuaded that these were simply disciplinary measures. However, it was not prepared

that it is amounted to violence. The court was satisfied that there were two applications of some merit. P.473.


Both sides wanted to get to court to get the first interim custody and exclusive possession, then it would strengthen their argument at trial.

Charry v. Charry

Allegations of spousal abuse. This is common in the affidavit allegations. One of the spouses was seeking exclusive possession. This demonstrates a care that judges trial to be to these cases where there are allegations of violence. The wife claimed she had been the wife’s main caregiver; and until recently the father had simply been

too busy at work and then all of a sudden became a Disney Dad. She also asserted that she could not afford suitable alternative accommodations based on her income. S.24(3)(c & e)

She also asserted that the husband had been emotionally abusive to her. The husband filed his affidavit and admitted that she had provided the child with care giving. He said

things had changed at work and he now had more time on his hands. He denies the allegations of emotional abusive. He said they did argue about her expensive spending habits.

The courts are sensitized to the reality of spousal violence. [note prof. Nicholas Bala has written many papers on this.]

P.475 – “it is a long term marriage and there is no evidence of any long term history of abuse. The case did not present cogent or compelling evidence for potential for violence. There was no evidence to suggest the child would be subject to harm. Thirdly, s.24(3)(a), s.24(4) – the court concluded that if either parent were displaced in their right to possess, it would have a serious impact on the status quo. The court considered the status quo (both parents in the home) and decided to leave things the way they were and that would be the best interest for the child.

The court concluded that there would be no positive result by turfing one out. But note, the court made an interim custody order in favour of the wife. It allowed possession to be shared, but decided that interim custody would be given to the wife.

Contrast this with Vollmer

Volmer v. Vollmer

Remedy of exclusive possession will be used in conflicting obligations if only to ensure calm and stability for children.

Court looked at, 476-77: 1. Both parties alleged acts of verbal, emotional and physical abuse against the other. 2. The court had competing affidavits and neither had be tested by cross-examination. There was

no third party affidavit material. 3. There was evidence of police involvement , but it is typical that once they arrive, there is nothing

to report. The parties argued for exclusive possession. The court was not prepared to make conclusions, except

that the children should not be exposed to any of the difficulty. p.477 – “although the evidence regarding the parties…is not in their best interests.” The next feature is that neither child expressed an interest to live with their father - s.24(4)(b).


Both children were in school close to the home. Any move would be disruptive. The wife did not have alternative accommodation.

The court was not concerned that making an interim exclusive possession order – the court ordered the husband to move out.

This is one judges’ take. Even if it is in a competing situation, if there is enough to demonstrate the parties are at odds with each other, the children are exposed. It is better to ensure a calm stability. Often judges will make the hard decision to turf one out in order to protect the children from being exposed.

What Violence means and whether it requires a physical harm element to it:

Hill v. Hill

Revolved around a long-term marriage. The wife wanted to separate. At that point, the husband began writing threatening notes to her and started to interfere with her circle of friends.

She brought a motion for interim exclusive possession and was awarded it. The court, in assessing her argument, came across the term violence. S.24(3)(f) – violence is a factor the

court shall consider in determining. P.479 – the court considers her evidence. Note, her case was supported with an expert – evidence of a

physician. Psychological problems. Reference to violence and its meaning – p.479 – “Paragraph (f) refers to violence. In my view the

violence in this context must be such that it makes continuation of joint cohabitation …physical blow.” It is not stipulated in that decision, but that judge also referred to Black’s Law Dictionary and found

violence included any act that included exerted any use of force or power to injure – including the mind. “In my view it is the conduct of Mr. Hill which has rendered the matrimonial home incapable of being

shared…His are the greater resources to do so…” Alternative accommodation and greater resources are referring to s.24(3)(c&e). There is an annotation by Professor Mcloud. What made this case significant that “continued

cohabitation was intolerable or impractical.” As a result, had no order been made, it would have forced the weaker party to leave the home. Recall case law dealing with cruelty under Divorce Act s.8. Violence is a broad concept. It will include emotional harm. In order to protect the security and physical integrity, the court will displace one’s right to ex. Poss./

Sale and Financial return if immediate sale of the home is made:

Often when one party seeks exclusive possession, the one who may be thrown out, in response, says they want the sale of the house now. An immediate order for sale will displace the possession of the person seeking possession.

Cicero. V. Cicero


The wife sought to resist the sale of the house. This case helps us understand what a court will look at in this type of competing claim. The court looks at:

1. Where there are joint-owners, generally gives you the right to sell the property. 2. What is the extent of the equity? 3. Look at the circumstances of the children. 4. The attachment the children had to the community. 5. The wife and children had no suitable alternative accommodation. 6. Economics of the question.

a) Is the property paid for or does it have a mortgage? b) The maintenance costs c) The husband’s financial circumstances would not be economically enhanced by the sale.

If the property were sold, he wasn’t going to get a lot of money that would help him in his ability to pay support that would help the wife and kids to find alternative accommodations.

p.480 – the home was described as a modest home. The child had to be under the constant care of the mother due to a medical condition. There were relatives close to the home – tie to the community. The court is picking up on the factors ree24(3)(a-f) For the wife & kids, to continue living in the home was in the best interest of the kids. P.481 – in regards to the economics of the situation. Note – in effect, by awarding the wife interim exclusive possession, it did prohibit a joint owner from

accessing his equity in his property. But it had to do with the amount of return that he would get. For example, if the husband’s equity in the home is 10,000 – if that money were invested, what return

would it provide? Not much. But if it were 100,000 it would likely provide an income return and enhance his ability to pay a larger amount of support.

At some point, the sale will take place.

Rosenthal v. Rosenthal

Economic and financial consequences. At the material time, the home had a gross value of $130,000, mortgage of $86,000 – low equity. There were three children of the marriage that lived in the home, but only one dependent. The other children were adult children

– not in school and were being subsidized. The wife asked for exclusive possession allowing her to stay in the home. Husband wanted an order of sale. The wife argued her standard of living should not be limited. The court found that there wasn’t enough money to go around. The cost to maintain the home was too great. Smaller

accommodation could be available. Do not ignore some of the basic financial economic considerations.

October 21, 2002 – Monday


Part II is important because of:1. S.17 & 18 2. It provides constraints on the title owner about what can be done to the home – s.21. despite title

status the legislature stipulated the other married spouse requires consent.3. S.19 – to stipulate equal possession, right to occupy, to the matrimonial home.

A means by which exclusive possession can be according. To displace the equal right to possession. S. 24(3)(a-f) – on exam.

S.24(3)(a-f) – three classes of factors that could be put together:1. best interest of children. ( Pieffer & P …) 2. Economic circumstances. (Cierco, Rosethal). S.24(3)(c & e).3. Violence,m s24(3)(f). (Pierrier, Vollmer, Hill).

Sale of the home v. allowing for exclusive possession: You want to know the equity in the home. Secondly, once sold, what equity is there and how will that

actually impact on the financial circumstances of each party? (will it enhance a payor’s ability to pay support? Will it assist a party in finding suitable alternative accommodation?)

Ex. Possession requires some thought to these considerations:The court is either the Superior Court or unified court.s.24(3) – we have canvassed a, c, e, & f.. It leaves part b – an economic feature.

s.24(3)(d) – any written agreement. Have they actually addressed this at some point along the way? Be wary. It can only refer to a separation agreement. It cannot refer to a marriage contract because (52(2)) it cannot deal with any deprivation of a spouse’s right to equal possession of a matrimonial home. Once the parties have decided to separate, they create a domestic contract (if they choose to) and that doc may address who may have exclusive possession.

Some arguments you may hear that DO NOT work are: If you give the other spouse the right to live in the home, that will be counter productive to my clients

efforts to seek reconciliation. The courts have said this is not a viable argument. Secondly – there are creditors out there and if you deprive me of my equal right to possession that will

send a bad image to the creditors.

Ancillary powers – orders that can be made hand in hand. S.24. s. 24(1)(a or d) – allow a court to make a court for an order of delivery of contents. If someone is turfed

out of their home, they may want furniture. The court may make an order for delivery of furnitatrue.’ 24(1)(c) – ancillary order - a court can make an order for occupation rent. That occupation rent is paid

to the person who is turfed out. For example, a mat home and its worth 500,000 with no mortgage. The two spouses are doctors. One is in, the other is out. The person who is in has the right to enjoy all of the equity. The person who is out is deprived of the equity. The person who is in likely has the means to pay on account of the other spouses equity. An order may be made. The rent would be payable for the duration.


S.24(1)(e) – allows the court to make an order having to do with payment for repairs and maintenance to the matrimonial home. E.g. the furnace blows up.

S.24(5-7) - Enforcement Powers. A court has made an order for ex. Possession. When that someone is out, it doesn’t displace their right to ownership. It does tell that person you can’t go there. The court can impose a fine or perhaps imprisonment for violation of the court order if they went to the home.

Part II dealing solely with the most significant asset – the home – requires that certain proctections be understood. Found at section 21 of the FLA:

S.21 restricts the right of a matrimonial home. It requires the non-titled spouse consent to any transaction. If the only seeks to place a mortgage on the home, the other non-titled spouse will be re

The second means of alienation is where the rights under PART II have been given up – under a separation agreement.

Third – where a court allows it to be done by a court order. Finally, the parties are at liberty where they have more than one matrimonial home – they can choose to

designate one of the homes to be a matrimonial home. (s.20 ). Note, s.20 has no application wehere the parties have only one matrimonial home.


Ch. 6 – Spousal Support

INTRODUCTION

Before 1978, spousal support was referred to as an alimony claim. Alimony was available at common law or under provincial statute. What is distinctive of how the law evolved, prior to 1978 only a married woman could initiate a claim. Only a married man could be made to paid support.

Additionally the liability to pay a claim was established where there was proof of a man’s misconduct: adultery, cruelty (the standard for cruelty was the Russell test. –required danger to life and limb), or desertion.

Liability: adultery, cruelty, or desertion. However, the man regardless, had an absolute defence to a claim for alimony if he could prove her misconduct. E.g. her adultery. So, even if the man was found guilty of misconduct, if the woman engaged in adulterous behaviour, then her right to continuing alimony was extinguished.

At the heart of an alimony claim was the issue of spousal fault. A good wife got support if she could proof the husband was bad. Spousal support was then not determined by any consideration of: the length of the marriage, on the

basis of age or health of parties, not determined on the basis of economic need, or having regard to the contributions to the marriage either by money or moneys worth.

That historically is the basis on which reform began to involve, primarily by the work done by the Law Reform Commission of Canada.

LRCC became to reform initiatives:1. Historically, spousal support was both sexist and inequitable –available to one only spouse.2. Historically, at the heart of determining alimony claims, the key feature was fault. There was no

assessment of economic considerations such as “economic need v. ability to pay.”3. The state of this alimony law did not reflect the values, norms of Canadian society where more

and more both spouses were working outside of the home. 4. Alimony had a continuing reliance on proving fault. This reliance promoted continuing

destructive acrimony between the spouses and had a lasting impact – emotionally and financially on the spouses and children. You had to dig up the dirt and prove it.

5. Began to develop the new support model: a) Spousal support should be available as a cause of action that either spouse could makeb) There were more people in relationships outside of marriage suggested that the word

‘spouse’ should be defined to include unmarried co-habitees (heterosexuals in a conjugal relationship). Reference ‘conjugal’ – that term is found in the definition of the word ‘co-habit- - s.1(1).

c) Liability would be an assessment based fundamentally on a simple equation – measuring the claimants financial need against the payor’s ability to pay.

d) We should identify the amount of support.


e) In addressing support as an obligation, duties or obligations should be identified that each spouse should have as it relates to support obligations:

I. There is a primary duty on all of us to support ourselves, II. Parents have a duty to support their children.

III. Every person has a duty to support the other spouse in accordance with that other spouses need and your own ability to pay.

The new model should be distanced from old considerations of fault. Note: Federal Divorce Act – s.15.2(5) – fault will not be a factor in determine if spousal support. In

contrast to this statute, there are certain vestiges of fault considerations in another statute – Family Law Act. Spousal support can be claimed under either federal or provincial act. The FLA – s.33(10).

S.33(9)(a-m) – that is a checklist of all the factors that a court should consider in the amount. Recommendations. Since these enactments (federal divorce act, and FLA) the cases enunciated have moved the discussion

along to address the objects of spousal support. On exam - Caselaw related to spousal support suggest that spousal support should be custom made to reflect the model of the family has been fashioned by the parties themselves. Spouses are encouraged to organize their family in the way they choose to do that. So, both spouses may pursue careers outside of the home, or the parties choose that one will work outside the home and one will work in the home. However it is, in the event of breakdown of the marriage, spousal support should be designed to avoid or reduce. Unreasonable economic disadvantage experienced by one or the other that arises from the ‘how’ they decided to divide the work while co-habitating.

It is more complicated than asking ‘does one have need and can the other pay?” How did the parties divide up responsibilities during co-habitation? Do did what when, and how did it

impact on the economic ability to sustain the future?

There is a view that a spousal support order should be to put them back in the position they would otherwise have been in if there had been no cohabitation. But, this is not a realistic objective that can be achieved.

What is the point of a spousal support order? How can it vary? Note: Moge p. 545. by trying to put parties back, is unsuited and unworkable in a long term marriage.

L’Heureux-Dube gave guiding features: p. 545 – she addresses what is the social and economic background features. Spousal support laws had contributed too often to the feminization of poverty. P.551.

P,557 – she acknowledged there are no neat compartments on which to rely when determining support. You can’t create a model that is inflexible. The objective of SS should be the fair and equitable distribution of the resources of the marriage and to alleviate the consequences of the marriage breakdown – p.555.


Moge v. Moge 17 years of cohabitation. The man worked outside the home as a mechanic, the wife assumed childcare and household managed.

She had also worked part time cleaning offices. At the time of their divorce, the woman got custody of children, child support, and spousal support.

(p.545). After the separation, she continued to work and acquired the job full time. But given her advancing age

and lack of job skills, she couldn’t maintain her job. 16 years after the separation, she was only able to acquire part time work. At that point, the husband

went back to court seeking to vary (change) the spousal support. He wanted it terminated. The trial judge agreed. The wife should not expect to be supported forever. SCC reinstated the spousal support. There are some features – to help focus on the issues that we want

to discuss with him on the exam:1. Roles assumed during marriage often will result in sacrifices unquantifiable. Often, these un sac

are made by the woman and have an ongoing permanent effect on future earning capacity.,2. SCC recognized that,552 – the mere fact of marriage does not automatically entitle a spouse to

support. Even the Divorce act realized one of the objectives is to promote a person’s economic self sufficiency. The court balanced that by saying the object of self-sufficient cannot trump all others. Sometimes self-sufficiency is not realistic. Spousal support should be crafted to provide compensations.

3. a trial judge has to exercise judicial discretion. It is necessary to balance purposes to support. (reference s.15.2(6)(a-d) – p.555-558 -) the principle focus when awarding SS was to ensure a fair distribution of the economic gains and economic losses of the marriage and there should be an emphasis for compensation for economic sacrifices in the marriage and for relief from economic consequences in the marriage breakdown. P.555 – judges should take judicial notice of the economic impact of marriage breakdown. P. 557 “as marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumption claim to equal standards of living upon dissolution.” This is close to the theme that there should be equalization of income on economic income. But that is not what the statute provides.

On exam: The lessons of Moge are certain terms she uses. For instance, the traditional marriage (p.546-7) –

L’Heureux-Dube characterized Moge’s marriage as a traditional marriage. Mrs. Moge was out of the labour force and engaged in the traditional role of household management in an effort to free up the husband so he could pursue a career. She said that there is a ‘presumptive disadvantaged” – as such, Mrs. Moge is entitled to long-term spousal support.

The features in a traditional marriage are: long periods of cohabitaiton, probably children, the husband’s career outside the home has been moderately successful.

There are two provisos that don’t get rid of the obligations on all of us to take reasonable steps to become self-sufficient. Everyone has that duty to support themselves. Nor does it guarantee an equalization of income. Despite a traditional marriage, every spouse has these duties.


The second category of marriage talked about was the ‘new traditional marriage’ . Both spouses are in the labour force, but one spouse makes career sacrifices for the family – e.g. stopping work at the time of birth of children, working part time, or giving up a job because the other spouse has to move somewhere else. These are the unquantifiable sacrifices. These circumstances strengthens that persons spousal support application. Think about missed opportunities for advancement in the work palace.

Third type, ‘the modern marriage’. Both spouses have employment outside the home and both are maximizing earning potential. They divide the housework. Here, a spousal support claim is likely to be weak. There will be a higher onus to demonstrate how their career has been prejudiced, what sacrifice, economic disadvantage suffered due to roles assume by the marriage. ‘Clean-break –p.554 – a lump sum payment.

These are the types of marriages that you can categorize to begin a discussion about spousal support liability on exam. Roles assumed in a marriage/ types of marriages: traditional, new traditional, modern.

Roles Assumed in Marriage:

1. Traditional Marriages. Women who remain out of the work force, responsible for child care and domestic affairs while their husband pursues his career.

2. New-Traditional Marriages. (likely the most common). Both spouses are in the labour force for most of the marriage, but one spouse, typically the woman, making career sacrifices for the family, such as stopping work when children are young, working part time, and moving in accordance with dictates of a spouse’s career.

3. Modern Marriages. Both spouses maximize earning potential and divide domestic labour equally.

Two statutes which provide for spousal support:1. Divorce Act (federal) – s.15.2 & s.17.2. Family Law Act – Part III – s.29-38 for spousal support.

Divorce Act

Federal statute. Begin with the term “corollary relief” – s.2(1). It is relief that is granted. It is one of four things:

1. Spousal support2. Child support3. Custody4. Access

s.15 of the Divorce act, two type of corollary relief: spousal support and child support. S.15 defines the term ‘spouse.’ It is restricted. The spouse club is limited to married persons and it

includes former spouses. Spouses married to one another who later divorce, later on may be able to launch a claim. So, it is possible that at a time of divorce there was no spousal support order made. They could come back later. The authority is in three cases : Zacks, Oulette, Lapointe.


The court retains jurisdiction to allow for spousal support even after the parties have been divorced. Also, it is dangerous to seek spousal support long after the divorce where it wasn’t granted in the first instance. There must be a persuasive justification for spousal support years later where it wasn’t awarded in the first place.

Technically they can ask, practically they will likely not be success. The door is shut to co-habitee, common law partners, or gay people. If a person speaks spousal support look at 15.2(4 & 6). S.15.2(4) – Factors for making a SS order. S.15.2(6) – Objectives of spousal support orders. What kind of orders can be made? S.15.2(1 & 3) recite the authority for the court to make different

types: 1. Periodic spousal support award . This is the most common type of support order made. There is

a significant tax implication made with respect to periodic support orders. The person paying is entitled to deduct the spousal support periodic payments from taxable income. The payee must pay taxes on the money they get. NOTE: this is not how child support works. There is not such tax implication for child support.

2. Lump-Sum Awards (Clean-break situation). Generally they are once and for all final support payments. Note there is no tax consequence. The payee gets it tax-free.

3. Periodic Order with a Fixed Time Frame . It will be paid by the payor by the payee for, example, 1 year. It is a term support order. Note s.15.2 – gives the court the authority to make an interim award. Interim awards may take the form of periodic or even a lump sum. Interim support awards are generally made on motion with affidavits and a financial statement. These motions go before a justice of the superior court or unified court.

S.15.2(3) – Terms and Conditions. Allows the court to stipulate terms and conditions for an order. E.g. To make it a time limited order. The court might impose terms that it will continue until the payee continue an education program – for example. It might stipulate SS will end at re-marriage or entry into a common law relationship. SS doesn’t automatically end at re-marriage. It might constitute a change of circumstance allowing the court to vary the order, but it is not automatic.

The Law Reform Commission said that the federal parliament developed what factors should be taken into consideration for Spousal Support and what the objectives should be for a trial judge. 15.2(4) & (6).

S.15.2(4) Factors. Itemizes the factors that a court should look at in deciding the matter of a SS order. a) Length of time the spouses have cohabitated. That suggests that the longer the period of

cohabitation the stronger the claim. Also, they don’t use the word married. They use cohabitate.

b) Functions performed by each spouse during co-habitation . They suggest there has to be a careful assessment of the non-remunerative labours and responsibilities. Household management and childcare. How has that impacted on ability to maintain financial need?

c) Any order, agreement or arrangement between the parties – talking about domestic contracts. The term domestic contracts is under the FLA – not in the Divorce Act. In effect, parliament is saying if the parties made a deal that addesses spousual support, parties are obliged to go with that.


October 23, 2002 – Wednesday

Recap:Two avenues by which one may seek spousal support:

1. Divorce Act2. Family Law Act

Last day we reviewed the Divorce Act. Corollary relief is one of four things that are claimed in the wake of divorce. Divorce Act - we can see how the federal parliament adopted the themes enunciated in the Law Reform

Commission. We began to look at s.15.2. S.15.2(4) – three factors. S.15,2(6) – objectives. Inspection of these will emphasize the economic features of the objectives:

a) Economic advantage or disadvantage of the marriage breakdownb) Apportion between the spouses any financial consequences arising from the care

of…c) Relieve any economic hardship of the spouses arising from the breakdown of the

marriage.d) In so far as practicable, promote the economic self -sufficiency of each spouse

within a reasonable period of time.

P.505 – Notes & Questions #6. “Women in their Forties: The Extent of their rights to Alimentary Support” by Miriam Grassby.

S.15.2(5) – spousal misconduct shall not have a bearing on support liability. Fault has been displaced under the federal statute. It is not the same thing under the provincial law act s.33(10). While the FLA seems to going in that direction, there is a difference. Fault may still have a bearing on entitlement. There are important differences between the FLA and Divorce Act. It may be that they provide a tactical advantage or disadvantage. ON EXAM. List the differences.

S.15.2 addresses SS claims “at first instance.” That means when the parties separate and the divorce action is initiated. SS orders, whether under divorce act or FLA are never final. The one exception is lump-sum payments. Once paid, that is the end of the obligation. Otherwise, SS orders may always be the subject for review.

VARIATION, RESCISSION OR SUSPENSION OF ORDERS

Divorce Act – SS variation applications at s.17. It allows for variations. S.17 allows a court to consider a variation. This variation may be to rescind or suspend the order. The essential test on an application to vary SS, is found at s.17(4.1) – the applicant is obliged to

demonstrate that there has since the making of the first order a change in the circumstances of one of both has occurred.

The 1968 Divorce statute employed the word ‘material’ instead of ‘change.’ Material means big, substantial, significant. Minor changes will not do it.


The applicant must demonstrate the continued means of payor and need of payee. S.17(7)(a-d) - recites the objectives in varying a spousal support order. Emphasis is on economic and

financial factors in determining continuing liability. S.17(6) – the counter part to 15(2)(5) – conduct is to play no part in assessing support obligations.

Family Law Act In each province, there is an equivalent statute. Spousal support rights are founded in Part III s.29-50. The outset, p.281, definition section. Critical to understand who is included in the term ‘spouse.’ The Divorce Act, the ‘who’ that may apply for spousal support is confined to persons married to one

another. Under the FLA the definition is broader. The definition of ‘spouse’ is not like s.1(1). At s.29, married persons are at the top of the list, but the

definition has widened. It has included: heterosexual common law spouses – provided they meet the test.

Heterosexual common law spouses had two criteria:1. A man and woman who are not married to each other; and. 2. They have cohabited continuously for a period of not less than 3 years. There is an alternative to

that – ‘or’ they have resided in a relationship of some permanence and are the natural parents of a child.

M v. H. SCC said that s.29 is unconstitutional. They gave the province 6 months to reinact section 29. the dealt with it by creating a new definition, p. 281, same-sex partner.

Same sex partner is not a spouse, in each instance where the spouse is entitled to right for support, the legislation reflects that the same sex partner may also apply. When we address spousal support the persons entitled to it under the FLA are:

1. Married persons2. Heterosexual cohabitees - provided they meet the test.3. Same-sex cohabitees provided they meet the test

It identifies legal duties upon both spouses and same sex partners. S.30, p.282. s.30 – Obligation of spouses for support. Every spouse and every same sex partner has an obligation

to provide support for himself or herself and for the other spouse or same sex partner, in accordance with need, to the extent that he or she is capable of doing so. The obligation is that each person has the obligation to support themselves. And every spouse has a duty to the other to the extent they have the ability to do so.

s.31(1) – Obligation of parent to support child. A third duty that exists with respect to parents. They must support their unmarried children who are minors, or enrolled in a full time education. They has to do with child support.

S.32 – Obligation of child to support parent. A forth obligation. There is a legal obligation of adult children to support their parents. While the cases are rare, there will be more cases like this in the future.

There are four duties on support: support yourself, your partner, your children, your parents.


The pathway in making an application for support is found at s. 33. It is complicated with 15 subsections.

S.33(1) – Order for Support. Spousal support applications may be launched in any one of the three courts available. Ontario Court of

Justice, Superior Court of Justice, or Unified Family Court. The same series of statutory obligations apply no matter which court you go into.

There are purposes for a spousal support orders. S.33(8)(a-d), p.283, - Guidance for a court in assessing obligations. An order for the support of a spouse

or same-sex partner should,a) Recognize a person’s contribution to the relationship and the economic consequences of that

relationship for the spouse or same-sex partner.b) Share the economic burden of child support equitablyc) Make faire provision to assist a payee spouse or same-sex partner to become self-supporting.

(like Divorce Act).d) Relieve financial hardship

In Keast, the husband decided he would quit his teacher job and go become a doctor. Over his schooling the wife supported him and the family. When he got his licence, he left he. The court considered how much he would likely earn in the future. The court made a base amount of periodic support and an additional amount for anticipation of earnings in the future.

S.33(9)(a-m) – Determination of amount. In determining the amount and duration, if any, of spousal support, same-sex partner or parent in relation to need, the court shall consider all the circumstances of the parties including:

a) This really means the financial statement. A required form. It is an affidavit. It works on the ESOO principle – Earnings, spending, own in terms of property, owes in terms of debt. It is required disclosure.

b) The assets and means that the parties are likely to have in the future. (Keast (1986) 20 RFL (3d) 236).

c) The dependant’s (payee) capacity to contribute to their own support. This takes on a critical feature when talking about a potential payee who is still young enough and healthy enough to engage in retraining to acquire capacity to secure employment and earn an income. You may be looking at periodic support, but time limited. That doesn’t fit in all cases.

d) The respondent (payor)’s capacity to support. What is the person’s ability to support. Look at the financial statement.

e) The parties age and physical and mental health.f) The dependant’s needs in determining…The standard of living. Normally on separation the

desire objective is that the non-income producing spouse should not be relegated to a lower standard of living. Unfortunately, in many cases, there are two households which cost more. Therefore, the standard of living will likely go down. Then, the court feels that both should have a reduced standard of living (Silverstien – 1978). There is a difference between short term and long term marriages. Short term under five years –the principle emphasis on the court is to make


an order that encourages the payee to acquire self-sufficiency. In a long term marriage, there is a greater importance to ensure the payee’s standard of living is achieved in the support order (Heinemannp.554,6,7)). Linton reaffirms – if it is a long term traditional marriage, the only fair standard of living is the standard adopted during cohabitiaton – p.544, 550, 557, 579)

g) The measures available for the dependant to provide for his or her own support. The court looks to the lawyers to assist the court how realistic a plan would be so the payee could become self-sufficient. In involves a detailed plan. The court will look at any type of plan for retraining with an eye on how realistic it is. Look at the Taylor (1978) 6 RFL (2d) 341 case. It must be genuine and realistic. The court will not saddle the payor with unrealistic plans. (Magon, and Collard).

h) The legal obligation of a potential payor to support others. Easy to identify if the payor has a prior spouse. That is a legal obligation. This is distinct from a moral obligation. E.g. sending money off to your mom is not an legal obligation (unless there is a court order).

i) The desirability of the parties remaining at home to care for a child. j) A contribution by the dependant to the realization of the respondent’s career potential. We have

seen this in the Cartun decision. In that case,, there was a lump-sum payment of $30,000 – recognition of the career potential. Another example is the Keats decision. This is useful where one spouse is helping the other spouse in their career. If there is this type of contribution, it occurred at the beginning of the relationship.

k) Repealed.l) If the dependant is a spouse or same-sex partner,…This has several subsections. Each has to do

with SS claims only.(i) You are required to take into account the length of time of cohabitiation (not marriage). Short term periods of cohabitation would generally not result in a SS order – or if it did it would be time limited. The longer the period of cohabitation, the. P.508-510 Labbe v. McCaulla.(ii) The court is required to have regard to the effect of the payee’s earning capacity…It is designed to address compensation for it. Court must look at economic loss or economic advantage. E.g. the payee will stay at home and become a full time homemaker. As a result, that person has been prejudiced by diminishing signourity rights, missing out on promotions, etc. Caselaw: Bregman, Omerod, Elliot. (iii) Whether the spouse or same sex partner has under... It deals with a payee who continues to assumne the care of an adult child because the adult child is unable to withdraw from parental care due to illness or disability. This is an added responsibility which should be compensated.(iv) Where you have a spouse that assists a child in their program of education where they are over 18 years. There is a potential conflict for double payment. Look at S.31(1). The definition of a child for child support purposes includes a child who is over 18 in school and still under parental care. So, the parent is able to request child support, and at the same time under s.33(9)(L)(iv) request support.(v) & (vi) – added responsibilities for child care, an infant, and how that has impacted… It ties into s.33(9)(i).

m) Any other legal right of the dependant to support , other than out of public. Requires a court to assess the payee’s application to determine if there is any other source, other than public money. Can the payee look to her own assets to generate income?

S.33(9) there is an advantage under FLA for the payee. This section is not in the Divorce Act. It may be better to choose to go under the FLA as opposed to the Divorce Act. These are tactical considerations.


Spousal Misconduct

S.15.2(5) & s.17(6) of the Divorce Act dislodge spousal misconduct entirely as a feature. It is not to play a role in determining the amount.

S.33(10) of the FLA. A careful reading of this section notes: first, spousal misconduct shall have no bearing on the issue of entitlement. This means it has nothing to do with your right to ASK. You have the right to ask for support and have your application judicially determined. The second part bears on quantum. It enunciates a high test – before misconduct will have a bearing on quantum, the conduct must be so unconscionable (s.5(6)) 380-396 – cases that dealt with unconscionability.

S.33(10) requires a number of features. First, that there be a course of conduct. Secondly it requires this course of conduct be unconscionable. The unconscionable must be such to constitute an obvious and gross repudiation of the relationship. This is a high standard. The wording of this section borrowed it from an English case Wachtel – this is in p. 524-26

Adultery alone will not meet this test. The sexual behaviour would have to be so unconscionable and gross to constitute suitable repudiation of the relationship.

Many people would suggest that if a person in an adulterous relationship is living with someone else would constitute… But don’t focus on the adultery. Focus on the living relationship & economic relationship. The support model is financial need v. ability to pay. Look at the economic consequences and how it affects the economic model.

S.34(1) – Powers of the Court – the grab bag of SS orders that can be made. There are a variety of orders that can be made. In some cases, many can be made. In other cases, maybe only one. The Divorce Act has no similar provision. So, if you feel you client needs a specific type of order, you may want to use the FLA.

a) Periodic orders. (remember the tax implication).b) Lump sum order. A once a for all payment. (remember the tax implication)c) The court may transfer property as a means of achieving a SS order (where the payor is cash

poor but asset rich). d) An order of exclusive possession.e) Third party payments. The court could order, in addition, that there be direct payments to, for

example, orthodontist care once a month.f) Retroactive orders. If the parties have been separated and there was no order made originatly.g) Reimbursement.h) Payment of expenses for pre-natal care. If the spouse was pregnant prior to during separation

there can be reimbursement. i) & (j) are very important. These orders are not available under the Divorce Act. They are

important for the long term traditional marriage. They allow a court, as a form of SS, to make the payor designate the payee on certain types of assets. (i) A life insurance policy and (j) a pension. So, you need to make an assessment. There are some constitutional limits about which court can make what orders s.34(2) – not on exam.

S.34(5) & (6) – another unique difference. These features are NOT available under the Divorce Act. The COLA – costs of living adjustment. When you go to court and are successful in obtaining a SS


order, life goes on, the cost of living continues. Sooner or later a SS order will provide less to the payee while the costs go up. Before we had these sections, you had to go back to court. You had to retain a lawyer, prepare an application, affidavits, notice to file, permission from the court, etc. The legislature created these sections. These sections stipulates automatically – the order will be adjusted based on the Customer Price Index. Every November the order is automatically adjusted.

Is there relief for the payor? S. 38 allows a respondent to seek an order to stay the provisions of s.34 (5) & (6).

The differences between FLA and Divorce Act: Different treatment about spousal misconduct. S.15.2(6), s15.2(5), divorce,, s.33(10) of FLA. The type of spousal support orders available. S.34(1) of the FLA. There is nothing the same as this in

the Divorce Act.1. The cost of living provision.2. The road map for determining amount. S.33(9)(a-m). There is not equivalent provision under

the Divorce Act.3. Definition of the term ‘spouse.’ It may preclude you from using the Divorce Act. You can’t use

it for a client in a common law relationship. Only married people can use the Divorce Act.

Note s. 36 of the FLA – stipulates that if the parties are married and one has initiated a FLA proceeding and the other initiates a divorce proceeding that will stay the family law act proceeding.

Note s. 35 of the FLA – it allows registration of domestic contracts. This is a building block process. Parties to these agreements can make agreements for spousal support. But it is not a court order. It is an agreement. If the payor stops paying, the payee could sue for breach of contract. If you want to sue for breach, you would have to hire a lawyer, statement of claim, discoveries, etc. This section says to the payee to go register the domestic contract containing the support agreement. Once you register this, it becomes available for treatment as a court order immediately. Quick remedies. The only provision that gets treatment like an order is the spousal support order. Any other part would be treated like a contract.

Support orders are never final and are always subject to variations – in both acts. S.37.of FLA - the test for a variation is at s.37(2). “if the court is satisfied that there has been a material change in the dependant’s or respondent’s circumstance…

Spouse. There may be occasions where a client presents himself to you. The first inquiry is whether they fit in the word spouse. S.29, p.281, the definition of spouse requires a period of co-habitation. Reference this to cohabit. The word cohabit is defined at s.1(1) of the FLA is defined to mean ‘to live together in a conjugal relationship’. You next what to make note, in the definition of spouse, is that the cohabitation period in the first instance must be continuously for a fixed period of not less than fix [period. What does continuous mean? What happens if there is an interruption?

p.281 – in a relationship of some permanence, a child, - what does it mean? You can exclude the classic one night stand. There will be a child support obligation, but don’t mix it up with spousal support. How long? Look at case law.


October 28 th , 2002 – Monday

There are two statutes that allow for spousal support applications:1. The Divorce Act is restricted to married people. 2. Family Law Act - the definition of ‘spouse’ is broader.

Section 29 of the FLA. As assessment of the term ‘cohabit’ is needed. Go to s.1(1) – Definition section. There are three important aspects:

1. It requires persons to be living together in a conjugal relationship (as opposed to a roommate status).

2. This applies to unmarried cohabitees whose cohabitation lasts for three years. What is important is that the period of cohabitation be continuous. It raises challenges if there is an interruption. What type of interruption will put the clock back to zero?

3. One part of the spouse definition is where unmarried cohabitees cohabit in a relationship of some permanence where a child is born. What does ‘some permanence’ mean?

Limitation Period. Spousal Support applications, under s.50 of FLA, poses something of a challenge to lawyers – it is a limitation period. The limitation is two years from the date of separation. S.2(8) of FLA – provides for discretion in the court to expand time frames. But, you are not likely to find any relief by relying on s.2(8).

If your client is a married person, if you missed the deadline, you have another statute – the Divorce Act.

Section 29 of the FLAEligibility to meet spousal status for spousal support:

Sanderson v. Russell (1979), 9 RFL (2d) 81 [Cohabit and continuity of cohabitation.] Parties of opposite sex, unmarried cohabitees. The man said that between the start and the finish there was a period of separation of 4-5 days. Note two things: (1) This case was decided under the old Family Law Reform Act. (2) That statute

stipulated the period of cohabitation had to be continuous for a period of not less than 5 years. Issue : Was the continuity of cohabitation interrupted sufficient that it deprived the woman of spousal

status? The court focused on the meaning of the term ‘co-habit’. P.506 – cohabit means to live together in a

marriage-like relationship inside or outside of marriage. The court adopted the language in Fedhan v. Atwells – you are looking for these key features.

The court found that a marriage like relationship starts and ends:1. When either party regards it as being at an end. There must be proof of a clear intention to bring

the relationship to an end. 2. The party who has demonstrated this intention to separate does so demonstrating a particular

state of mind that the intention is a settled intention.


The court of appeal applied these conditions of the test to the case. The genuine test of interruption had to be both flexible enough and realistic enough to recognize a

cooling off period. The court concluded that these 4-5 days of separation was part of the cooling off period and so the man’s

argument failed.

What do you do and say to a client who says what do I have to do to ensure there is an interruption? Suggest the parties enter into a cohabitation agreement (domestic contracts section of FLA or separation agreement). Either one would indicate what the intentions of the parties are. Otherwise, tell the client to stay away from that person for as long as possible.

Relationship of ‘some permanency’ for which a child is born or adopted:

The legislature’s intention in using the term of ‘some permanence’ is to exclude one-night stands. What does it constitute? No assistance in the statute. What is the test? Is it a factor of time? Solely

conduct? What role does intention play?

Stoikiewicz v. Filas (1979), 7 RFL (2d) 366 Parties of opposite sex and the woman became pregnant. The shared an apartment, but sleep in separate bedrooms. At some point, the man gave the woman an engagement ring (evidencing some intention to marry). Note that during this period of time, the woman providing some cooking and cleaning services. She also

made a cash contribution. The relationship broke down and she sued for child support. This is not an issue of whether child

support applies. Issue : Whether she was entitled to spousal support because there was a relationship of some permanence

where a child was born. Facts, as the courts marshaled them up that supported the woman’s case included the following:

1. There was a sexual relationship. 2. There was occupation in the same apartment. 3. The giving of the ring by him to her – potential commitment. 4. The provision of domestic services. These were elements, which supported the view that there

was a relationship of some permanence. The facts against her in favour of the man were:

1. She made periodic cash payment on account of rent cost. 2. She did not look to him as an income source because she had an independent source of income –

public assistance. The court took these features to amount to a negative finding, p.508


The court considered how broad this definition is. It concluded that people live together as cohabitees for a variety of reasons. They chose not to get married. The court said if the legislature intended to intrude, then it was intruding in the right of people to make free decisions. “There are today many men and women living together without the benefit of clergy. There are many reasons for this. Many couples who do so, do so in order that they can retain their personal freedoms unencumbered by the obligations which both the law and traditional morality impose on married spouses.”

Note that s.14(b)(i) is now section 29 of the FLA. If you are going to look at the expansion of the spouse club, you must strictly construe it. They must demonstrate quite clearly the assumption of responsibility of the other. “In my view that unmarried persons cannot be found to be cohabitating within the meaning of s.29

unless it can be determined that their relationship is such that they have each assumed an obligation to support and provide for the other in the same manner that married spouses are obliged to do.” (P.508.)

The court found that while they were intimate, their economic life was at arms length. The household services and cash contribution was her fair share of the rent.

This case promotes the economic assessment of the relationship.

Labbe v. McCullough (1979), 23 OR (2d) 536 [Broader interpretation of the section] Man and woman that have some cohabitation for a total of some 6 weeks. The man at all times left his personal things with his parents. Was there a relationship of some permanence? The court found that there was a relationship of some permanence, but limited the spousal support to 12

months. The following evidence would lead to the conclusion that their relationship was a relationship of some

permanence: 1. The parties knew each other’s whereabouts at all times. 2. The applicant moved to Toronto to be with him.3. The respondent went to North Bay to be with the applicant while he recovered from his broken

hand. 4. There had been some talk of marriage some day.

In contrast to Stoikiewicz, there is no assessment of economic consequence in this case. P.509, at the bottom, the judge considers that the talk of marriage gave the relationship some

permanence. The element of time, 6 weeks of cohabitation, only affected the amount of support and its term (he limited it to 12 months).

The issue of time is statutorily promoted as an important feature - s.33(9)(l)(i). This section tells you that a factor in determining the amount of support is the period of cohabitation.

This case does not promote the idea that there be an economic assessment.


LOOK AT THIS CASE FOR THESE FEATURES. P.511 – Molodowich v. Penttinen – hit list of factors when inquiring of your client.

Guide to determining if a couple had been cohabitating in a conjugal relationship:1. Shelter:

a) Did the parties live under the same roof?b) What were the sleeping arrangements?c) Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:a) Did the parties have sexual relations? If not, why not?b) Did they maintain an attitude of fidelity to each other?c) What were their feelings toward each other?d) Did they communicate on a personal level?e) Did they eat their meals together?f) What, if anything, did they do to assist each other with problems or during illness?g) Did they buy gifts for each other on special occasions?

3. Service: Was the conduct and habit of the parties in relation to:a) Preparation of meals;b) Washing and mending clothes;c) Shopping;d) Household maintenance;e) Any other domestic services?

4. Social:a) Did they participate together or separately in neighbourhood and community activies?b) What was the relationship and conduct of each of them toward members of their respective

families and how did such families behave toward them?

5. Societal:a) What was the attitude and conduct of the community toward each of them as a couple?

6. Support (economic):a) What were the financial arrangements between the parties regarding the provision of or

contribution toward the necessaries of life?b) What were the arrangements concerning the acquisition and ownership of property?c) Was there any special financial arrangement between them that both agreed would be

determinant of their overall relationship?


7. Children:a) What was the attitude and conduct of the partier concerning children?

These are the things you ask your client about to make out a relationship of some permanence.

The definition of same sex relationship at s.29, mirrors the definition of spouse. Authority: M v. H case p.52-77. SCC considered s.29.

Issue of spousal support and the impact of misconduct. It is a useful reminder that the provisions of the federal Divorce Act, if only to reassert the difference.

S.15.2(5) and s.17(6) – essentially say that in spousal support applications under the Divorce Act, spousal misconduct is NOT a factor.

S.15.2(5) – spousal support applications at first instance.

In contrast, s.17(6) is when someone seeks to vary the original spousal support order years later. Spousal misconduct does not affect entitlement, the right to ask, or quantum determination. THAT IS NOT NECESSARILY THE CASE UNDER THE FLA. So, you need to make a practical decision about which statute to apply. S.33(10) of the FLA. This addresses spousal misconduct and stipulates that spousal misconduct will not affect one thing, but it may affect something else.

S.33(10) Conduct – The obligation to provide support for a spouse or same sex partner exists without regard to the conduct of either spouse or same sex partner, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

Misconduct will not affect entitlement or the right to ask. So, here it shares the same approach. But the court, in determining the amount, may look at conduct in the determination of the amount. The test is conduct that is so unconscionable so as to constitute an obvious and gross repudiation of the relationship.

What is unconscionable?

We get a sense of the meaning of this in the Morey case.

Morey v. Morey (1978), 8 RFL (2d) 31 (Ont.Prov.Ct.) Remember before the Family Law Act, fault was the determining factor for both entitlement and

quantum. The court picks apart each of the key critical words. The first word is ‘unconscionable’. The court considers that word means monstrous harsh, totally

unreasonable, grossly unfair. The word ‘gross’, the court concluded that it means out of measure, beyond allowance, shameful. They don’t want conduct litigation and are interpreting this section narrowly. The word ‘course of conduct’ – should not be limited to isolated situations or a single incident. The language of s.33(10) won’t affect your right to ask. But in some instances it could affect entitlement.

“although that discretion seems to be limited to adjustments to amount…virtually eliminated” From the language employed in the section, the test affecting quantum must be narrowly and strictly

construed.


“I think the test ought to be a strict one.” The court focused on the phrase ‘obvious and gross’. It examined a number of English authorities.

This phrase, the court looked at Watchel v. Watchel [1953] 1 All ER 829. That case determined: 1. One spouse’s conduct alone, or in isolated circumstances, should not generally determine

quantum. 2. In most relationships, there is enough conduct on the part of both that it has impacted on the

relationship. 3. Because the applicant may share in the breakdown, that should not penalize her application. 4. Obvious and gross – must conger up a set of facts that it would be repugnant to anyone’s sense

of justice.

The second English authority, Harnett, p.525. It recognized the black and white test: If the conduct of one of the spouses is substantially as bad as that of the other, then it matters not how gross the conduct is, it will weigh equally.

This Harnett test also requires:

1. The conduct be wilfull and persistent by one towards the other. 2. The conduct must be calculated to destroy the marriage. 3. The other party must substantially be blameless.

Principles from the English cases which are relevant:a) The conduct must be exceptionally bad.b) The conduct must be such as could reasonably be expected to destroy the marriage.c) The conduct must have persisted in the face of innocence and virtual blamelessness on the part of the

other spouse. (the black and white test from Harnett).d) The commission of a so-called matrimonial offence is not necessarily sufficient by any means.e) The party raising the issue of relevant conduct should be prepared to undertake that there is a bona

fide belief that the test in s.33(10) can be satisfied while acknowledging the risks of punitive costs if the court finds on the whole of the evidence that the issue is frivolous.

f) The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so the court can make a preliminary ruling based on the likelihood of the tests being met.

In the case of a long marriage, where the husband argues the misconduct was her desertion, that will not work now.

The sort of case where you are likely to find the section 33(10) applying is where the wife was upset at the husband and stabbed him 57 times. She then served him with papers for spousal support while he was in the hospital.


Cases dealing with the factors of spousal support – the matter of the payee becoming self-sufficient:

This raises the Causal Connection Test. P.528-569.

The focus of the Pelech trilogy cases is about an economic theory as the basis for spousal support liability. This theory, was developed in the first half of the 1980s. It is referred to as the causal connection test. It has its roots in self-sufficiency considerations.

S. 15.2(6)(d) – Federal Divorce Act – in so far as practicable, the target of a spousal support order is to promoted economic self-sufficiency.

Spousal Support as a target, where possible, should be designed to redress economic need, which arises directly from the marriage and from the economic relationship created during the cohabitation.

Family Law Act – s.30 – identifies the duty imposed on all of us in accordance with one’s own ability to be self-sufficient. Each should be presumed to be self-supportive if both spouses are working professionals and then later divorce.

Where the economic need, at the time of marriage breakdown, is related to the marriage, there should be support. Where it is not related, there is no need for support.

Messier v. DeLage (1983), 35 RFL (2d) 337 (SCC)

Wife had custody of children.

She obtained spousal support at the time of divorce.

At the divorce, she had not worked outside of the house. However, she was enrolled at school during the marriage breakdown.

Four years after the divorce, the husband applies to vary the order. Remember these orders are not final and can be varied.

P.528, midpoint, he acknowledged that he had the means to pay spousal support. However, he argued that despite the fact the former wife did not have full time employment, she had completed the Master’s program. He was saying that she should not have this entitlement for life.

CA said that spousal support liability continues indefinitely.

The husband advanced the following: The advances that woman have made in society, equality of treatment of sexes, and the trend in statutes designed to emphasize the duty of one to support themselves.

SCC noted the following:

1. Spousal support orders are never final and may be varied by the court.

2. Each case should be decided on its own facts against the statutory factors s.15.2(4).

3. The court reviewed the variation provision 17(4)(1) – requires a court to assume a positive obligation to look at all manner of changes since the order was ordered.

4. There is some limitation.

5. When a change is asserted, the change must be material and something in place. Not a change that you think is going to happen.

Taking this collection of principles, the court dismissed the husbands appeal.


“In my opinion the Superior Court erred in disregarding the actual factors submitted for its consideration and hypothesizing as to the unknown and then unforeseeable future and the Court of Appeal properly intervened.” P.529.

There is a dissenting opinion that is important. Justice Lamer – p.530-31 – he frames the issue “Should a divorced spouse who is working always bear the consequences of all this and provide for the needs of his unemployed former spouse, or is it for the government, if it cannot remedy, at least to alleviate the effects, and to what extent?”

The former wife had received her university training. She argued that by itself does not guarantee employment and continued to have financial need. Lamer said no. He focused on “the ability to work – once that has been achieved, despite need, the other person liability to pay support is terminated.”

“In my view the evolution of society requires that one more step be taken in favour of the final emancipation of former spouses. To me, aside from rare exceptions, the ability to work leads to the end of divorce and the beginning of truly single status for each of the former spouses. I also consider that the ability to work should be determined intrinsically and should not in any way be determined in light of factors extrinsic to the individual, such as the labour market and the economic situation.” P.531.

Once independence has been achieved, spousal support should be terminated.

“A divorced spouse who is employable but unemployed is in the same position as other citizens who are unemployed. The problem is a social one and therefore the responsibility of the government rather than the former husband. Once a spouse has been retrained, I do not see why the fact of having been married should give the now single individual any special status by comparison with any other unemployed single person.” P.531.

Remember that Lamer is a dissenting opinion. This argument has a limited application to certain cases.

Pelech Triolgy – brought this causal connection theory to the forefront. 1. Pelech v. Pelech (1987), 7 RFL (3d) 225.2. Richardson v. Richardson (1987), 7 RFL (3d) 304.3. Caron v. Caron (1987), 7 RFL (3d) 274.

Pelech and Richardson cases- carefully read the decisions.

Pelech v. Pelech

Parties were married and cohabited for 15 years. Not a short-term marriage.

At the time of the divorce, the parties created their own deal – separation agreement. This agreement stipulated that the husband was to pay to the wife a lump sum in installments over a 13-month period.

The terms related to the lump sum payment were incorporated into the divorce judgment.

The husband follows through.

Both the spouses had independent legal advise in terms of how the deal was crafted and its consequences.

So, the deal is done and divorce is granted.

In the years after the deal, the wife got ill and couldn’t work continuously. In addition, she was required to encroach on her capital to support herself. She finally exhausted her funds and went on welfare.


In the meantime, the husband had enjoyed financial improvement.

13 years after the divorce, the wife wants to vary the order. The trial judge varied the order. If there is someone’s pocket to pick, it should be the former husband and not the government.

BCCA reversed.

SCC – dismissed her applications and concluded p.537:

1. Parties had negotiated their own agreement – freely.

2. At the material time, each had independent legal advice, which addressed the consequences of the deal.

3. In looking at the contract, the court did not find that it was ‘unconscionable’ that it went to the root of the contract.

4. Court intervention in the agreements made by the parties should only be permitted where a future misfortune, giving rise to the application has a connection to the marriage circumstance. This is the most important factor.

5. (There should be a clear message to parties that ): There is finality to agreements. This is the very heart of the decision in Farquar (1983), 43 OR (2d) 423.

6. A change upon which a variation application had to be rooted could not be simply be catastrophic, enormous, but that change had to have its connectiveness out of the marriage circumstance. Court referred to the Webb authority p.534. Webb suggested that the concept of change in circumstance is that the magnitude of the change must be gross. P.537 – test – “the test of radical change in Webb is an attempt to carve a fairly narrow exception to the general policy of restraint. It fails, however, in my opinion in one important particular….”

7. Causal Connection Test – p.537 – the court says “Absent some causal connection between the changed circumstances and the marriage, it seems to me that parties who have declared their relationship at an end should be taken at their word. Their decisions should be respected.”

8. Relieving Power. “An economic pattern of dependency engendered by the marriage”. You have to go back to the marriage circumstances and look at the economic relationship.

9. A spouse who enters a bargain and then falls on hard times, should not be able to fall back on the former spouse. P.537

10. The conclusion the court is sending out involves important policy determinations:

a) The court is trying to encourage people to take responsible for their own lives.

b) Parties should be encourage to make their own decision because,

c) Their contracts, separation agreements, will be protected by the courts.

d) A change in an of itself without causal connection will be insufficient to warrant court intervention.

11. The court drew consistent reasoning based on prior decisions. They referred to the Farquar decision – when you have a contract in place and parties seek to vary it later on, it should only occur in a narrow range of cases. P.534. Trial judges should be reluctant to interfere with a valid and enforceable domestic contract. Justice Zuber – it is preferable for parties to settle their own affairs because: 1) The parties are more likely to accept an arrangement made by themselves. 2) The administrative burden of the court is relieved. 3) Treating the agreement reached as final, allows them to plan their separate futures. In those narrow range of cases, then it is suitable for the court to intervene.



Important difference between the Divorce Act and the FLA:1. Definition of the term ‘spouse.’2. Treatment of misconduct . Under divorce act it has no bearing on entitlement but may on quantum.3. There is a greater specification in the factors used to assist in determining the amount. FLA -

S.33(9).4. Wider variety of remedies available for Spousal Support orders under FLA - s.34(1).5. The cost of living provisions, which are built in to Spousal Support orders. FLA - s.34(5 & 6) –

allows for an automatic increase which then allows the payee to have the advantage of not going back to court.

6. Imposition of a limitation period in s.50 of the FLA. Two-year limitation period. Do not confuse this with child support application.

There were theories that were emerging in case law. Pelech trilogy. We looked at the Pelech case and became familiar with the courts emphasis on encouraging self-

sufficiency. The court also looked at causal connection. Example of causal connection: A spouse payee (who gets support) - their continued inability to secure

employment. [Ross v. Ross – p.537 – “absence a causal connection, the assessment of]

Richardson Parties were married for 12 years. They created a document – minutes of settlement. Minutes are filed with the court. They have been

determined to be a domestic contract. They are given the same recognition. A term of the settlement is that the man would pay spousal support and child support, but the spousal

support would be time limited. At the time the minutes of settlement were entered into, the wife was unemployed and receiving public

assistance. Two years later, the wife launched a divorce action. She then asked the court to make a fresh spousal

support order. CA would not allow the support order. SCC denied her request and stated:

1. The fact that she is a public charge (on welfare) did not by itself justify the variation of their contract which limited liability for term support in the absence of radical change in the circumstance.

2. There must be a radical change in circumstances and the change had to be tied to the pattern of economic dependency.

3. When the court went back into the marriage, it noted the wife had been employed outside the home. The court concluded the marriage itself had not impaired her employment skills. P.540

Dissenting Opinion - p.541 – “Turning to the facts of the case, Mrs. Richardson’s present situation flowed directly from the division of functions during the marriage.” Note: his views seem to trump the Moge case.


Exceptions to the Pelech trilogy rule:1. Spousal agreements related to children are not subject to the rules of this trilogy. 2. It is no argument to suggest that denying spousal support will necessarily cause deprivation to

the child in the care of that spouse. If that argument were permitted, then that would run contrary to the Pelech trilogy. Considerations of spousal support are different from considerations for child maintenance and should not be seen in a mixed context. (P.540 – first paragraph.) If there was additional concern for the child, then the court could adjust the child support order.

General remarks about the trilogy:1. In each of the cases, there was a valid domestic contract between the parties.2. In each one, the application to vary was brought by an applicant who whoa on welfare.3. Despite the applicant’s circumstances, in the face of the contract, the court refused to intervene.4. The message from the SCC is that intervention should be quite limited. It should be limited to

catastrophic change where there is causal connection, otherwise a bargain is a bargain.5. The court was attempting to reinforce a more objective standard for determining support. It was

moving away form moral blameworthiness, to look to patterns of financial interdependence and how it was created by the marriage circumstance.

6. The court’s intention was to devise, where appropriate, a scheme for spousal support that addressed economic consequences arising out of the marriage breakdown.

A number of judges and academics began to pursue the trilogy to move it to the creation of a new support model to be applied to every spousal support applications at first instance. Their idea was that spousal support should only be awarded to advance self-sufficiency objectives and where the need arose from the marriage, it should be applied at the time of first instance.

The problem with this is that it is not what the SCC said. It said it was limited to applications to vary spousal support. So, Moge came about.

Moge is a landmark decision providing another clear message than the Pelech trilogy.

Moge v. Moge (1992), 43 RFL (3d) 345 (SCC) Helps to understand how you approach spousal support applications. Mrs. Moge was married for 18 years, mother of three, grade 7 education, her skill was a cleaner/janitor. She came to court to maintain her SS entitlement into the future: a) 12 years after the divorce b) 19 years

after the parties separated. During the marriage the husband had worked outside the home, the wife assumed the housework and

childcare, and she maintained part time employment as a cleaner. They separated in 1973. The husband was ordered to pay 150/month for spousal support (and child

support) She lost her job in 1987 (14 years later) and applied to the court to vary the support. It was increased to

$200/month. A year after, she got another job. It is 1989. Mr. Moge says this has been going on long enough and

brought an application to vary – to terminate support.


When it reached the SCC, Mrs. Moge was 55 years old.

Issue: Had spousal support been paid long enough to allow her to become self sufficient? Or should it continue indefinitely?

Majority was offered by L’Heureux-Dube. She was highly critical of all the people who took, the trilogy and applied it to every case. She rejected the notion that Pelech advanced the notion of self-sufficiency as the primary support model objective. “With respect I cannot agree. A careful reading of the trilogy in general, and Pelech in particular, indicates that the court has not espoused a new model of support under the Act. Rather the court has shown respect for the wishes of persons who, in the presence of the statutory safeguards, decided to forgo litigation and settled their affairs by agreement under the 1970 Divorce Act. In other words, the court is paying deference to the freedom of individuals to contract.” - p.545.

Pelech has its place where you seek to vary the terms of the contract. The trilogy should be confined to cases involving agreements. It applies to cases where there is a spousal support agreement. The focus should shift from judge made law to statutory divisions of the Divorce Act [specifically to s.15.2(4 & 6) & s.17.]

She then decided to assess whether or not a support model should have singular emphasis on self-sufficiency. That was no greater or less a factor than all of them. “Parliament could not have meant to institutionalize to the ethos of deemed self-sufficiency is also apparent from an examination of the social context in which support orders are made. In Canada the feminzation of poverty is an entrenched social phenomenon..” (p.551).

She put the self-sufficiency back in its context.

“It would be perverse in the extreme to assume that Parliament’s intention in enacting the Act was to financially penalize women in this country. And while it would undeniably be simplistic to identify the deemed self-sufficiency model of spousal support as the sole cause of the female decline into povery, based on the review of the jurisprudence and statistical data set out in these reasons, it is clear that the model has disenfranchised many women in the courtroom and countless others who may simply have decided not to request support in anticipation to the problem.” (She is speaking about when the Pelech trilogy exploded.)

Principles that emerge from Moge : (Conclusions from L’Heureux-Dube.)

1. Self-sufficiency is not the sole support model. It is one of several objectives. There is no indication in the statute that there is a priority to any one of them.

2. Parliament intended that spousal support could be tailored to meet a diverse dynamic in the number of different types of marital relationships. “It is important to note that families need not fall strictly within a particular marriage model in order for one spouse to suffer disadvantages. E.g. even in childless marriages, couples may also decide that one spouse will remain at home. Any economic disadvantage to that spouse flowing from that shared decision in the interest of the family should be regarded as compensable” (p.556). “In short, in the proper exercise of the discretion, courts must be alert to a wide variety of factors and decisions made in the family interest during the marriage which have the effect of disadvantaging one spouse or benefiting the other upon its dissolution. In my view, this is what the Act mandates, no more, no less.” (p.557)

3. Considered the differing approach to support. She considered the modern marriage, and the traditional marriage. She was not prepared to set hard rules.

4. Spousal Support is intended to deal with economic consequences that arise out of the marriage and marriage breakdown. Partners are entitled to share in the benefits of the relationship. Income generated by one may constitute a benefit to be shared by both.

5. SS determinations are more than simply assessing need v. ability to pay. It is more complex because of the factors and objectives defined in the Act.


6. SCC placed some emphases by drawing on a wide range of socioeconomic date related to divorced women. Downward mobility of the divorced woman – both economically and socially and how that translated into sustained economic hardship. Self-sufficiency is put back into its place as one of several factors. Trial judges should be better aware with the social reality of circumstances of divorced women.

7. Justice McLachlin – Self-sufficiency is still an important factor, though it has everything to do with that persons ability to contribute to their own support. That ability may be subject to several factors. P.560 “ the judge must base her decision on a number of factors: compensation, child care. Post separation need, and the goal, insofar as practicable, of promoting self-sufficiency.” [on exam].

8. The court introduces the idea that a purpose of spousal support is compensation. It recognizes the historical contribution of women to the non-monetary benefits of the family. By making that contribution it often impairs their ability to maximizes earning potential. Even where women worked outside, they still suffered. E.g. missed promotions because the took some time off after child birth. The worth of the non-monetary contribution had to be recognized and the recognition came in equitable sharing of economic consequences on marriage breakdown. (P.555 – last paragraph.) There is genuine value to home and child care. That value had to be taken into account and balanced against the impact on future earning capacity.

9. The court referred back to Messier, 554, “ to assess each marriage on its own facts” - there could not be any neat rules for spousal support obligations. P.556 – the court is saying to trial judges “any economic disadvantage… should be regarded as compensable.”

10. p.561 – it is not that complex. “ I do not think the evidence needs to be curtailed by a year by year chronology of sacrifices and gains…It is clear that certain things must be done to maintain a family. Income must be earned. Food must be bought and prepared…In most cases, it will suffice if the parties tell the judge in a general way what each did. That will aloow the judge very quickly to get an accurate picture of the sacrifices, contributions, and advantages relevant to determining compensation under s.17(7)(a), making detailed qualification and expert evidence unnecessary” She takes a common sense approach.

Moge has redesigned the landscape for SS and has ejected new life into SS claims. Moge takes into account the social realities of our time.

The trilogy doctrine should be used to where it was intended – variation of spousal support orders. It should not be used for cases of first instance.

The effect of Moge is: a) more spousal support cases are resolved on consent; and b) more opened ended spousal support orders made.

Justice McLachlin addresses the argument of self-sufficiency. “arguments that an ex-spouse should be doing more…college graduates. Their career advancement has been permanently reduced…”


Bracklow v. Bracklow (1999), 44 RFL (4th) 1 (SCC) Addressed the circumstances where there is a short period of cohabitation. Parties are married after living together for 4 years. The husband knew the wife had health problems when the relationship started. In the first two years of the relationship, the wife had a better income. The wife then became unemployed. They separated in 1992, divorced in 1995. At some point, at the husband’s urging, the wife left employment. The wife’s health seriously deteriorated. She was plagued with serious problems. At trial, she asked for permanent spousal support.

SCC imposed both ongoing and indefinite spousal support. It concluded:

1. A recognition a mutual duty of support, unless there was evidence to the contrary, that is created by marriage. (parallel to s.30 of the FLA). E.g. of evidence to the contrary would be a marriage contract.

2. While spousal support is a duty under the Divorce Act, it is not necessarily presumed both the Divorce Act and the FLA provide as objectives that spousal support orders are to be designed to address economic consequences of breakdown. (Under the Divorce Act –s.15.2(6)(a) and FLA s. 33(8)).

3. While the correction economic consequence is not necessarily the primary objective of spousal support, the court is required to consider compensation designed to promote self-sufficiency.

4. Compensation might not always fit the circumstances. Sometimes the claimants circum cannot be met by simply a compensation order or an order designed to promoted self-sufficiency. The financial need may be more enduring –eg. The ill spouse.

5. Recognition that sometimes in short-term marriages, where the economic detriment is likely to be modest, compensation orders fit the bill. E.g. lump sum payment – allows for a clean break.

6. Apart from those circumstances, where there is a breakdown, you have to look at he interdependencies and intentions. In this case, there was a higher level of partner interdependence. The wife had need – health conditions, husband’s superior ability to pay.

This case tells you that even where the cause or the need does not arise directly out of the marriage, the court will impose a spousal support obligation.

Both Moge and Bracklow gives you the view there are two broad categories of spousal support:

1. Compensatory Spousal Support. The aim of this is to compensate the disadvantaged spouse form the effect of sacrifices made during the marriage and how those sacrifices had an effect on that person’s economic well being. What would be the measure? Some say would be to put spouses in a position as close as possible as to the standard of living they had before the marriage. The longer the period of cohabitation, the greater the presumptive claim to equal standards.

2. Needs Based. Based on s.15.2(6)(c) – hardship that a person suffers as a consequence of the marriage breakdown. This is the more common one.

P.555 - L’Heureux-dube places more emphasis on compensatory model.


Brockie v. Brockie (1987), 5 RFL (3d) 440 (Man.Q.B.)

Raises the notion that there is something of a connection between the SS liability and ongoing child care responsibilities. E.g if you are the payee asking for child support and you are also the custodial parent, that by itself creates a need that enhances you spousal support claim.

5-year marriage.

Married at 18, pregnant.

Separation agreement was made. Husband agreed to pay child support and spousal support limited to a period of three years. This was on the basis of some plan – over that three-year period she was going to participate in the university program and get a job.

Instead, she did not go to university. She had minimal income. The husband was employed full time and later started living with a partner. His standard of living tended to rise dramatically, while hers eroded.

The wife, at the end of the three years, sought more spousal support. The court awarded further support on a time limited basis.

The reasoning why the court did this was the court took into account. P.580, s.15.2(6)(b). “apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to the subsection.”

The court detailed the financial consequences faced by the custodial parent. The parent must get suitable accommodation, lack of freedom the custodial parent has to accept shift work or additional work, the lack of time to engage in further education. The non-custodial parent can live anywhere, pursue a career, have shift work, or whatever – not restricted.

This case tells you that sometimes in formulating the quantum you can take into account the payee spouse ahs a child care duty. S.33(9)(l) – of the FLA – here are all the things you look at in determining the amount – (l) the payee also has to take care of the child.


Ch.7 - CUSTODY AND ACCESS ORDERS

Applicable statues:1. Children’s Law Reform Act (provincial)2. The Divorce Act. (federal) – Custody & access is considered within the context of corollory

relief. The power to address C &A is found at s.16 of the Divorce Act – at first instance, and s.17 – when years

after you seek to vary the order.

Children’s Law Reform Act - CLRA

On the provincial scene, the CLRA.

S.1 – Eliminates a prior legal distinction. The rights of a child born within or outside of marriage. (A child born outside of marriage was tagged the bastard and had few legal rights.)

S.8 – For the first time, the statute has developed a collection of presumptions at law for determining parentage. These are simply presumptions. If any one applies, it is presumed the named respondent in the lawsuit is the child’s father. It would then be up to that person to establish that he wasn’t.

S.10 – Approved blood tests. Allows a court to make an order for blood testing. More commonly the court directs DNA testing.

S.10(3) Inference from refusal – if you don’t want to give the blood sample, the court can draw an adverse inference.

It recites basic purposes of the statute.

S.19 – Purposes.

1. In the making of decisions about C&A there will be a single test: what is in the child’s best interest. That clearly blew off the old myths like the tender years doctrine – which said that young children always go with the mother.

2. Ontario courts are obliged to recognize C&A orders of other jurisdictions. Forum shopping – parents shopping around for the right forum until he/she gets the order they want. So, no more forum shopping.

3. To discourage an idea that parental abduction will help advance your custody battle.

4. To provide for the more effective means for enforcement of C&A orders. If you don’t follow custody orders, a warrant may be issued. But it is weak for access orders.


November 4 th , 2002 – Monday : Ch.7 - Custody and Access

Federal Divorce Act -

Allows for custody applications at s.16 & 17.

Custody is referred to as corollary relief, defined at s.2. A corollary relief proceeding means a proceeding in a court in which either or both former spouses seeks a child support order, a spousal support order or a custody order.

S.16 of the Divorce Act provides the scheme for seeking a custody or access orders at first instance. That means s.16 governs it at the time of divorce – to be contrasted with s.17 which deal with applications to vary corollary relief (where the parties have been divorced for some time and something has happened to call for the need of review.)

Provincial Children’s Law Reform Act – custody statute for married and unmarried cohabitees. It is a large group – must larger than the divorce act.

S.1 – equality of children.

S.6 – presumptions that help a court decides who is a parent.

S.10 – blood testing and DNA

S.19 – no equivalent in the Divorce Act. It set sets out four purposes.

As far as custody orders are concerned, there are several remedies. Not for access.

S.20 – provides additional assistance in determining questions of where and with whom the child will live. Rules of engagement.

S.20(1) – a presumption. Parents at first instance, when they separate, are presumed to be equally entitled to custody.

S.20(4) – provides that where the parents separate and it is implied as a result of a consent or acquiescence, the child is living with one, then the equal right to custody is suspended but not the right of access. This suspension of the custody right remains until one of two circumstances:

1) the parties enter into a separation agreement to change custody; or

2) a court intervenes and makes an order.

The design of this section is to provide a measure of protection for the child. To protect the child from disruptiveness from a unilateral step taken by a parent.

E.g. father leaves the house on January 1st. They have an understanding that the father comes every Saturday. This goes on until July. In July, the father decides to keep the kid and not return him (unilateral self-help action). What does s.20(4) say? It is implied that all that time (jan-july) there is implied acquiescence that the father’s custody rights were suspended.

It results from the behaviour of the parties in the wake of their separation.

S.20(2) & (5) – there will now be a positive duty upon custodial parents to exercise the power of a custodial parent in the best interest of the child.

S.20 5 – access with an effort to define access as something beyond visiting with the child. It affords to the access parents two additional rights: the right to make inquires as to the welfare and the right to information about the child – education, health, etc.


Questions: will the failure of the custodial parent to act responsibly possibly expose the parent to an application to vary? To some extent it will depend on two factors:

1. Status Quo. 2. Best interests test 3. The need for a material change in circumstances upon which to advance an application to vary.

(Note s.29 of CLRA – awards a non-custodial parent the right to ask for a review.)

“Best interests of children” – the term is generally the result of a long legal evolution. It is now the test applied. Be careful about its scope.

P.620 – article, Abella “Procedural Aspects of Arrangements for Children upon Divorce..”

P.621 – she says, “seconded, the arguments.”

Use care when approaching the term ‘best interest.’

Note s.24(3) & (4) of the FLA. It addresses the question of ‘can we turf a person out of their home?” There is a list of factors that you consider – including the best interests of children. Best interest is defined differently in the FLA, Child and Family Services Act, and the CLRA.

You look at a) the extent to which a move would be disruptive and b) wishes of the child.

CFSA – a statute that authorizes Children Aid to apprehend a child for the court to determine if that child needs protection. The test of best interest in this situation is different.

Best interests is used in many different contexts. Each one has its own definition. Make sure you use the right test for the right profile on the exam.

ON EXAM: S.24(2) of the CLRA – this is the test:

s.24(2) Best interests of child – In determining the best interests of a child for the purposes of an application under this part in respect of custody and access to a child, a court shall consider all the needs and circumstances of the child including,

(a) the love, affection and emotional ties between the child and,

i) each person entitled to or claiming custody of or access to the child,

ii) other members of the child’s family who reside with the child, and

iii) persons involved in the care and upbringing of the child.

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained; [This has everything to do with the age of the child. You won’t get much out of a two year old. A 13 year old will likely have a lot to say.]

(c) the length of time the child has lived in a stable home environment. [This is Status Quo. The longer the one party has the child to the exclusion of the other, the stronger their case is. The court does not want to be disruptive to the child.]

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child. [It has to do with how well you marshal the evidence as the lawyer.]


(e) any plans proposed for the care and upbringing of the child. [Many judges are now advancing the view that a parent has to put a written plan together – write down all the aspects of how they plan to take care of the child.]

(f) the permanence and stability of the family unit with which it is proposed that the child will live; and

(g) the relationship by blood or through an adoption order between the child and each person who is party to the application. [It deals with the importance of a blood tie. Blood connection should give some priority.]

S.21 – Application for Order – a parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

Both the Divorce Act and CLRA address as well the context or place of ‘spousal misconduct.’

S.16(9) of the Divorce Act . The court shall NOT take into consideration the past conduct UNLESS the conduct is relevant to the ability of that person to act as a parent.

S.24(3) of the CLRA – Past conduct is NOT relevant to the determination of an application under this Part in respect of custody of or access to a child UNLESS the conduct is relevant to the ability of the person to act as a parent.

The real challenge is where does that draw the line? Is family violence that does not involve the child relevant? Alcohol abuse?

CLRA also deals with ancillary matters: Mediation.

S.31 CLRA – allows a court to appoint a mediator. It is tempered by the language that ‘it is only available at the request of the parties.’

S.31(2) The mediator must have consented to be the subject of a court order, and, has agreed to file a report with the court within the period of time specified by the court.

S.31(7) – parties making agreements about communication in mediation. Closed mediation restricts the mediator in their report to whether or not there was an agreement. Open mediation would…

Mediation is addressed s. 9(2) of the Divorce Act, in the context of a ‘duty’ on the lawyer to discuss with the client the mediation resources in the community. You must take this seriously. The judge may ask the client, “did this lawyer address the matter of mediation?”

Mediation is addressed in the Abella, p.623-624 – Mediation as defined is a process where the parties attempt to achieve a consensus with the assistance of a third party.

One of the most significant advantages is that it gives the parties a greater sense of privacy when working out details. Courts are open to the public – people can watch the dirty laundry.

Mediation has certain limitations where it is not appropriate:1. You have to have a case where the parties are operating free from any dominance of the other.2. Effective mediation must have the benefit of both parties having independent legal advice. 3. Must be certain the mediator selected is experienced, qualified, and competent.

Mediation is not suited whether you have a history of spousal abuse. You don’t have free agents.

But the positive advantage is the greater autonomy and flexibility the parties have in crafting their own resolution.


The most significant stumbling block for lawyers is the reluctance to hand their clients over to mediators.

In addition to mediation the CLRA encourages another resource. S.30.

S.30, CLRA – gives power to the court to appoint an Expert Assessor. It can direct the parties to be the subject of an assessment by an expert.

S.30(6) Refusal to attend. Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such an adverse inference in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. .

The court has the power to appoint the assessor based on s.30(3). Once the report is prepared, it is filed with the court and becomes evidence. S.30(8) & (9).

P.624-25 – Justice Abella looks at expert assessments and their quality.

Final alternative as a resource to resolution:1. Mediation 2. Expert assessment. 3. Arbitration.

Arbitration is not widely used because parties have to pay for the arbitrator. It has a distinctive advantage. Appointed an arbitrator gives the parties immediate access to a decision-maker. They don’t have to wait for the court to open up. It is quicker than court.

Appointment of counsel for children in custody cases. The importance has to do with the best interests test. S.24(2)(b). The authority for appointed of counsel, S.89(1) of the Courts of Justice Act. It refers to the Ontario Children’s Lawyers Office. It is a department of the Ministry of the Attorney General. It has created a panel of lawyers who are randomly chosen to pick up these orders. These lawyers have applied and have been approved. They are provided with training a few times a year. If a party wants a child to have a lawyer, they apply to the court under s.89.

Caselaw:[s.30 of the CLRA – addresses court ordered expert assessment:]

Linton v. Clarke (1994), 10 RFL (4th) 92 (Ont.Div.Ct.)

Focuses on: when do you make an order for an assessment?

Assessments and the role they play in a custody case and the role of the assessor and the assessor’s report.

Parties separated in 1989. When they separated initially, there was an agreement the mother would have custody.

Three years later, she initiated a divorce action. He then brought a counterclaim for custody.

She asked the court to make a custody access assessment. She said the children were suffering emotionally.

At the time, the mother lived in London, Ont. And he lived in Montreal.


He objected to the order because the assessor was to meet with the children in the custodial parent’s home. The assessor would not see any interaction between the father and children in Montreal.

Justice Jenkins denied the request. He denied it on the basis that given the assessors view that he was not going to go to Montreal, that the father’s case was not going to be properly assessed. He also took the view that there was enough flexibility that an order could be made later if needed by a trial judge.

It would be highly unlikely that the assessor today would view the interaction of the children in the home. It would not happen today.

It addresses another question: the role of the assessor in making a recommendation. The assessor would actually provide a recommendation as to the key issue of who should have custody.

P.636 – Weaver v. Tate (1989), 24 RFL - the assessor has no right to make a recommendation on the ultimate issue. The judge stipulated that the task of the assessor was to isolate and determine the needs of each child in question. Then, within the assessment, to evaluate each parties ability to meet those needs. Weaver v. Tate went to the Ontario CA. It looked at what the assessor should and should not do. It disagreed with the trial court. The broadness of the language of s.30 is that it leaves it open for an assessor to do that provided that the court has not - -at the time the assessment order is made, a judge may stipulate at that point what they want, or don’t want, the assessor to do. Only if the judge directs the assessor to hold back information – otherwise it is within their ..

Weaver is import for another reason. It restricts the assessor and his/her utility to cases where there are ‘clinical issues’ along with addressing the weakness and special parties.

The message of Weaver is that assessment orders should not be granted in all cases.

What does ‘clinical issue’ mean? It has yet to be fully explored. But if the case revolves around differences in facts and interpretation of law, it is not likely an assessment will be ordered. If the child has serious needs from emotional or psychological problems, it is likely an assessment order will be made.

To some extent the Ont.CA is recognizing the fact that s.30 does NOT mandate that there be an assessment in every case.

Assessments are very helpful to a judge. They give a historical analysis. This is important by virtue of the fact that the evidence does not have to come out in the oral evidence of witnesses.

You must have a basis for assessment: ‘clincal issues.’

[Factors relevant to custody and access decisions:]

Wakaluk v.Wakaluk (1976), 25 RFL 292 (Sask.C.A.)

Reminder that the real focus of the custody case should always be the child.

Both parents neglected to tell the judge something about the child.

P.640 – checklist that judges dealing with custody cases must know. E.g. child’s likes, dislikes, any handicap, etc. Common sense things. Yet often the adults are more consumed with how much damage they can do to the other spouse inst3ead of focusing on the needs of children,

Custody lawsuits should be child focused.

Spousal misconduct allegations between parties is irrelevant unless the behaviour has a bearing on parenting skills. S.24(3) CLRA tells us just this.


DE FACTO SITUATION:

Marshall v. Marshall (1998), 42 RFL (4th) 180 (NSCA)

Identifying the difference between interim considerations and final order considerations in the making of custody orders.

Interim motions – deals with where the child will live before the trial. It is the first person who gets to court looking for a temporary order.

On Interim orders, there is a need to ask these type of questions:

1. Which arrangement is the least disruptive to the child? Most supportive and protective?

2. Status quo has weight if it has provided the child with a familiar & stable living condition.

3. Where and with whom the child is living with right now ? If there has been a recent change, why did that happen? That second question is important for an artificial status quo. When a parent creates an artificial status quo for his favour.

4. Short term issues.

a) the child’s age and needs relative to school,

b) any special needs of the child

c) the child’s relationship with each parent.

d) the child’s daily routines.

5. Suitability of the temporary residence. That requires you to ask who is going to be the caregiver. It may not be the parent. It could be a nanny. The proximity to the child’s school. The availability of access by the non-custodial parent.

6. Any risk of harm to the child if you simply leave the child where he/she is. Is there any physical or emotional risk? If the parent is a pedophile, you must remove the child.

Lisanti v. Lisanti (1990), 24 RFL (3d) (Ont.Fam.Ct.) – [Self-Help; Unilateral Status]

This case emphasizes the court’s view that courts will view unilateral self-help with a disfavourable reaction.

Renaud is a similar case.

Important findings of the case:

1. The husband all of a sudden and found the wife and children were gone.

2. At the point where the wife left, she took refuge at a women’s shelter.

3. The court was not persuaded that the wife had good reason to leave and was critical of her steps; that they was unilateral self-help.

The wife argued:

a) prior to her leaving, she had been their principle care giver.

b) since she was the principle caregiver, she had the closer bond between her and the children.

The court concluded that what she had done was unilaterally upset the status quo. She had “unilaterally deprived the children of the home and life …into her own hands.”


The court places emphasis on these considerations:

1. S.20(1) of the CLRA.: there is equality of entitlement to custody at first instance that can only be displaced by a court order, agreement or acquiescence.

2. The court looked at what the wife did. The court rejected the notion that she was taking flight because of abuse. “her action was unilateral…designed by her to create a status quo.”

3. Parents have an obligation at the outset to explore resolution, agreement on custody & access. Failing that, they are to start a lawsuit and ask for interim relief. There is an exception. If there is in fact there is genuine harm or risk, then taking the children out of the home for the purposes of protecting them, it is okay – if they can prove the allegations. There must be substance to the allegations.

Note: there is acquiescence or implied conclusions of s.20(4) – CLRA – the equal entitlement to custody is suspended when – if there is implied acquiescence or consent that one person will have the children and the other will not.

Moores v. Feldstein [1973] 3 OR 921 (CA) – [Importance of status quo.]

S.24(2)(g) of CLRA – relationship by blood is a factor.

Basic facts: mother who within days of the birth of the child, voluntarily places the infant with the Feldsteins. A few months later, she changes her mind and wants the baby back. The Feldsteins refuse. Eventually, the mother goes to a lawyer and starts an application – two years later – but it was four years later when it got to trial.

Judge Dubbin was faced with: how important is that blood type?

The judge said that the blood tie was one factor among many. The court made reference to Re Duffell, [1950] OR 35. The court dealt with how important the blood tie is in a custody case. An applicant who has a blood tie who seeks to change custody where the respondents have provided wealth for the child over a substantial period of time, the applicant has an onus to demonstrate that ripping the child out of the status quo, proposed removal, will be beneficial to the child.

The blood tie is not automatic ticket to a successful custody application. This is in direct contract to many US cases.

If you have a status quo which has provided the child with a strong and stable home environment, where the child is properly cared for and is thriving, then the status quo may be an invincible circumstance.

“In my view, since the evidence does not show…returned to her.”

The mother’s failing was the long period of time. Had she initiated a lawsuit when she changed her mind, the outcome may have been different.

Spencer v. Spencer (1980), 20 RFL (2d) 91 (BCCA) – [Status quo & the need for security for the child.]

When they separated, the mother left without the children.

The evidence was that while they were in the care of the father, they were properly cared for.

There was a significant status quo in the father’s favour. Despite that, the trial judge granted custody to the mother.

The husband appealed and was successful.


CA recited the plus factors in the father’s favour – p.647

1. Father’s home was stable and secure.

2. Stability of the home had been acknowledged by the mother.

3. Children had sustained a staggering affect from the mother leaving so suddenly.

4. Children had strong roots in the community – friends and acquaintances.

5. Moving the children would pose a grave risk.

6. To leave the children where they are is not a gamble. To change the status quo was a gamble that the court was not willing to take.


November 6 th , 2002 – Wednesday

Two program notes. Need NOT read: p.673-694 – don’t read. At the end of the custody chapter, we will jump over chapter 8 & 9, and then go back.

Renaud v. Renaud (1989), 22 RFL (3d) 366 (Ont. Dist. Ct.) – [status quo & conduct] It is different because it also engages the implication of conduct. Review s.24(3) & s.20(2) of the CLRA. It provides a positive duty on custodial parents. S.20(2) – promotes the idea that if you are the custodial parent, you must exercise those duties as the best

interests of the child. It provides a positive duty on custodial parents. Before separation, the mother assumed childcare responsibility. Prior to the separation, the husband was verbally & physically violent. She left the house one night. He locked her out and denied her access to the children. He said he created a status quo. By the time the matter came to a hearing, he created an artificial status quo. His conduct was brought to the forefront. The court made a finding favourable to both. The court found two adverse sticking points to the husband:

1. He was a mean spirited person and had irresponsibly acted in not allowing the children any contact with their mother. The court takes no notice to the fact that he had breached her s.19 rights (FLA – each spouse equal right to possession which cannot be ousted but for written agreement of the parties or court order). He just kicked her out.

2. The court made findings in regards to his pre-trial separation – assault. The court considered this as a feature. The violence was to the wife alone. No evidence that the violence was directed at the children. It is a common argument for a man abuser to say that ‘yes I bet her up, but I didn’t touch the kids.’

The court concluded that the husband had acted irresponsibly. S.20(2) was breached as the de facto. He breached his duty to act in the children’s best interest because he denied contact with their mother.

Status quo won’t necessarily trump an order to win a custody case. Must be aware of the implications of s.20(2).

Conduct – s.16(9) of the Divorce Act and s.24(3) of the CLRA – closely mirror one another in saying conduct plays no part except in bearing on parenting skills.

“Status Quo – it should not be defined as merely a geographic place, but rather a way of life. The home, the neighborhood, school, etc. If all else is equal, it could not be in any child’s best interest to substitute an uncertain situation for a certain one. The onus if adducing evidence that it is in the best interests of the child to alter the agreement or status quo rests with the person seeking the change.”


CONDUCT

Fishback v. Fishback (1985), 46 RFL (2d) 44 (Ont.Div.Ct.) 7 year marriage. The wife abruptly leaves. She wants to pursue an adulterous relationship with another

man. She left two children, 4 and 8. Shortly after separation, she took the children with her. There were competing custody claims. At the end of the day, the children were awarded to the father. The court looked at the circumstances of the wife pursuing this relationship and finds it blameworthy in

some sense. But, it is not the adultery that was blameworthy, but the consequences arising from the pursuit of this relationship in relation to the children.

When she decided to embrace this relationship, she deprived the kids of the presence of their father, and in taking them out of the home, the court was satisfied that it was only for her to get a little more “excitement out of her life.”

In contrast, the father had a consistent history of total dedication to his children and trying to keep the family unit together. The wife put her personal self-interest first.

The court was persuading of the father’s devotion to his children. He was particularly preoccupied with emotional and moral development of the children.

S.24(2)(e) – the court’s mandate to look at the parent’s plan to provide for the children. The court looked at the parent’s plan, and liked the father’s plan more. By the time the trial was held,

both had significant others in their lives. The court thought that the father’s girlfriend was better suited to the children.

The mother had the children in her interim care for 9 months. That is a weighty status quo – but the court was willing to change

Don’t be distracted by the adulterous behaviour. Focus on the consequences imparted on the children in the decision of the one of the parent’s putting their own personal self-interest first.

Young v. Young (1989), 19 RFL (3d) 227 (Ont.H.C.) Parties separated after 15 years. Both worked outside the home. The wife assumed the childcare

responsibility. After they separated, the children remained with the wife. The wife alleged the husband was physically

and sexually abusive of her. There are two children: son is 11, daughter 13. P.661 – Both children advanced a wish to live with the father. Remember S.24(2)(b) – in determining

where a child should live, the wish of a child is a factor. At the end of the trial, custody was awarded to the mother. Like the Renaud case, there was no direct evidence of physical abuse to the children – just the mother. A judge has to go beyond that and appreciate what the professional literature has to say on the matter of

abuse in the house, where the children are not abused but the mother is. There was an assessment. It found there was abuse of the mother.


The court considered a number of expert authorities. The whole issue of domestic violence and its impact on members in the family the court arrived at some conclusions:

1. An abuser who goes without therapy will continue to abuse in another relationship;2. Children who witness abuse can become abused, even though not intentionally directed at

them;3. Abused male children often become abusers and abused female children may become

compliant to abusers. The court made an order in favour of the mother. The court looked at his post-separation behaviour. P.663 “he manipulated them into obtaining more

access for himself by showering them with lavishness.” The still had to address the children’s wish to be with the father. The court accepted the mother’s view

that they were too young to advance it. If the court concluded that it was factor, it should have put it as one of many factors to be considered.

The court should have weighed the factor equally in comparison to other factors. Even if the violent conduct is addressed at the parent and not the children, it is a much broader dynamic

than that. Family violence, once raised, you must take a hard look at it. You must prove it first, and then show the negative impact on the children..

PARENT’S RELATIONSHIP WITH A THIRD PARTY

Two issues to look at in the following cases of Reid and Barkley:(1) A parent’s relationship with a third party (2) Sexual orientation of the parent.

Both of these cases are pre-CLR cases: Note the Best Interests Test – s.24(2)(a)(ii) & (iii).

Reid v. Reid (1975), 25 RFL 209 (Div.Ct.) Trial judge awarded custody to the wife. A critical fact finding made by the trial judge was that despite the wife’s adulterous relationship, the

court was satisfied on the evidence that the marriage had been damaged well before she left. The adultery had nothing to do with the breakdown of the marriage.

The issue had to do with the fitness of the third party – the wife’s new partner. Apparently, there was at the trial, some amount of adverse evidence with this third party. What is most noteworthy is that this surrogate (wife’s new party) was never called as a witness at the

trial. One must wonder why? The result was that the trial judge never had an opportunity to make any assessment of this person. There was never an explanation as to why he wasn’t called.

Matter went on appeal. CA said the trial judge should have drawn an adverse inference from the wife’s failure to call him as a

witness. P667, “for some strange reason known only to the respondent and Donald Reid, he did not testify at the trial.”


The court went on to stipulate important considerations in determining custody when there is third party: 1. The obligation to assess the best interests must be taken in a broad context. 2. If there is a third party that is a part of the custodial plan; that is material. 3. In order for a court to make an assessment, there is a duty on a trial judge to make a finding

about the fitness of that third party. You have to have them the subject of assessment and cross-examination.

In this case, the court sent it back for a new trial.

SEXUAL ORIENTATION OF PARENT

Barkley v. Barkley (1980), 28 OR (2d) 136 Will sexual orientation play a role in custody? Both mother and father advanced a custody claim. The court found at the outset that both parents were fit parents. Issues: p.669, “The questions which arose from the trial were: Does the mother’s homosexual

relationship represent any risk to the healthy development of the child? If there is any discernible risk, what weight should be given to it? How does that risk measure up against other factors in the test as to which placement is in the child’s best interests?”

The court seems to suggest that the same sex relationship could be put in a proper perspective. Note s.30 of the CLRA. (Assistance to the Court) The assessor articulated in the report that the child had a desire to go with her mother. The court gave

weight to that. The argument advanced by the father was: the mother’s sexual orientation suggested that it would

expose that child to a lifestyle that would encourage the child to copy it. The court reached out in the expert areas of literature. It reviewed three cases:

1) Case v. Case. This case considered homosexuality to be a factor to be assessed, but by itself it is not a bar to a person advancing a custody claim. The court drew an adverse inference because the mother hid the party.

2) K v. K. The court determined the child had a good relationship with the gay parent. The assessor concluded that on the whole, that the sexual preference did not relate to the ability to parent. The court concluded homosexuality was a factor. The critical import depends on how the partners handle it. It brings home the importance of having an assessment done when dealing with issues of this sort.

3) D. v. D. The court is concerned with how sexual orientation is likely to impact on the development of the child’s own sexual orientation. It drew up a list on p.671. The court concluded that:

(1) Sexual preference is a factor that must be examined. (2) Its genuine importance is how it impacts on children. (3) This importance has everything to do with how it is handled by the parents.

In assessing that the court will likely ask p.672 questions. The court concluded that orientation does not affect parenting ability. Note: the decision Re K ,15 RFL (4th) – it is the leading authority on same sex custody cases. This is

different from K v. K.


JOINT CUSTODY

Joint custody must first be defined by stating what it is not.

Joint custody is NOT split custody, shared custody, or divided custody. You will hear those terms, and can become confused.

Split custody and shared custody are legal terms and have application.

Split custody and shared are terms applicable under the Child Support Guidelines.

Split custody involves for example three children where two go with the mother and one child goes to the father. The children are not all with one parent. Split custody determines who pays what.

Shared custody is also a term under the Child Support Guidelines. Eg. One child, child lives with the mother, the amount of access that the father has is in excess of 40% of the time. If you have a shared custody situation, that affects the amount of child support to be paid.

Both terms figure into child support payments. They are not involved in care & control issues.

Divided Custody. This is very rare. E.g. mother and father have separated. The mother lives in Windsor, father lives in BC. Child is two years old. The deal they arrived at was that from January to June the child lives with the father. He has custody during that time. From July to December, the child lives with the mother and she has custody. It is an odd situation. The person who has custody at a point in time, that person is the sole decision maker. It is rare. It is NOT joint custody.

So, what is joint custody? It is something other than conventional custody.

Conventional custody orders, generally, clothe the custodial parent with total & complete decision making authority. E.g. education, religion, etc. The non-custodial parent can often be reduced to the visiting parent. Note s.20(5) of the CLRA.

Joint Custody [3 features]:1. The child has a principle residence. Everyone recognizes the child is likely to be spending more

time there.2. The access of the access parent is flexible & broad. Not a lot of limitations.3. Important decisions about the child must be made jointly by the parties.

[Two important authorities: Baker v. Baker, and Kruger v. Kruger. Neither has been overruled or set aside. P.695.]

These cases say the following about joint custody: 1. A court must have expert evidence that supports the plan of a particular set of parents and gives a

likely prognosis of success. Easily done with a s.30 assessment. 2. Consent of both parties is required for the making of the order. 3. Parties must ask for it and demonstrate that they got a track record insofar as their ability to work

together. They each have to acknowledge that the other is a suitable parent. Joint custody is not likely imposed. It is the result of consensual agreement between the parties.

4. Evidence that there is a parenting plan put together by both of the parents. Something in writing. Its addresses the how, what and where of the child. If parties do not have a plan it will likely fail.


S.16(4) of the Divorce Act. Joint custody or access. The court may make an order under this section granting custody of or access to any or all children of the marriage to any one or more persons.

S.20(3) of the CLRA. Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

Joint custody is not divided custody.

When dealing with joint custody, you must look at:1. What joint custody is not.2. Appreciate it has three components:

a) principal residence, b) access parent is broad, c) important decisions for child made by both parents.

3. Two principal cases: Baker, Kruger.4. Tests enunciated by these cases.

Joint custody should be the exception. Only the result of consent.

MOBILITY CASES

Mobility rights – has to do with moving a child’s residence around. E.g. moving them across the country.

What rights do custodial parents have in making the decision in moving the child? What rights do the access parent have in stopping the move?

Carter v. Brooks (1990), 30 RFL (3d) 53 Issue: decision-making power of the custodial parent to move the child away from the access parent. The parents were married in 1982. Child born in 1984. At trial, the child was 6. During the separation, the child remained with the mother. Strangely enough, one of the parties signed the divorce and made no claim for corollary relief. The

divorce was granted, but there was no custody order in place. The mother had de facto custody. The mother remarries four years after they separate. The new husband decides there is a job opportunity in BC. After the separation in 1984, for six years, the father had exercised access. He was regular and enjoyed

the time together. When he found out about the move, was very upset and was not in agreement. That prompted her to bring a custody application. She went to trial and got custody. BUT, you can’t

move. As a result, she took it on appeal – unsuccessfully. P.753 – reasons of the court.


P754 – Wright v. Wright (1973), 1 OR (2d) 337 – this summarized at the time the state of the law. This is your starting point in addressing mobility: absent all considerations of unreasonableness the parent who has custody has the right to remove the child without the permission of the other parent, subject to two considerations:

1. There is a specific agreement (separation agreement) between the parties prohibiting the move.

2. If there is an access regime/schedule in place from which one may draw the conclusion that the parties intended that the child remain in close proximity to the access parent.

E.g. The access parent sees the child every weekend and Wednesday nights, there must have intended to be close proximity.

Remember at the time: (a) there was no court order (b) there was no agreement between the parties. All that was in place was a de facto custody with the mother.

CA begins to craft a distinction to the Wright authority. He displaces Wright by saying in any question, we now have a new statute which identifies a singular test for determine custody & access – s.24(1) – best interest test. Having said that,

P.754 & p.755 – the judge is reluctant to start crafting hard and fast rules in addressing custody & access considerations. Certain approaches have been taken in American cases – but not impressed. He also addresses the issue of burden of proof – who has what burden of proving certain things. P755. He distinguishes custody and access litigation from any other type of litigation in that both parents share an evidentiary onus that what they see is fore the best interest of the child.

He establishes that a custodial parent has no absolute right to remove a child from a residential jurisdiction. (this displaces the Wright authority).

The real question then is what is the scope of a custodial parents power? And to what extent will courts interfere with proposed changes in living arrangements adopted by the custodial parent?

Carter opens up a host of considerations: [one must consider as a lawyer or judge]1. Must present the circumstances of the existing access and custody arrangements. P7562. Look at the interaction between child and access parent. It leads to the conclusion that if there is a

meaningful relationship and a close proximity p756.3. Reasons for the proposed move. If, for example, the reason for the move is to deny access, it will

not work. But if the reason has to do with economic betterment of the custodial parents position and that will benefit the child.

4. The distance of the move. The greater the distance involved in the move, the more significant will be the impact on the access parent. Additionally, it will impact on the frequency and financial impact. The matter of exercising access can be expensive.

5. The child’s view. This has to do with a child who is able to articulate the view. S.24(2)(b) – a child’s wish is to be taken into account.

The mother was awarded custody, but restricted the child’s mobility. P.756, second last paragraph. The court concluded that the new husbands desire to move was by preferential choice. He was doing

well where he was and there was no real need. The matter of the child’s views, court appointed child’s counsel (s.89 of the Courts of Justice Act), p757

– “the submission on behalf of the child by his counsel…”


This submission placed some emphases on the positive aspect of the child’s relationship with the access parent. As a result, it emphasized there was no need for relocation.

Carter was the first case with a view to narrow or limited the bag of rights in decision making that a custodial parent has.

MacGyver v. Richards (1995), 11 RFL (4th) 432 (Ont.CA) Parents separate. Then the child is born in 1989. Throughout the child’s life, the child only lived with the mother. In 1991, child was 2 years old, the mother and child were in a court battle for custody. They made a

deal. Minutes of settlement: p.758 – the fathers access was every other weekend. This access did require there

to be some proximity. The mother, after the lawsuit, developed a new relationship. Her new partner was a member of the US

armed forces and was going to be transferred to Washington, DC. The mother wanted to move with her husband. The father opposed this and said it would interfere with his access. At trial, the judge determined the child’s best interest would be for the child to remain with the mother.

However, the judge refused to grant the mobility rights. The child stays put. She appealed and was successful. The CA removed the condition that restricted the child’s mobility. So, the father appealed and his appeal was dismissed.


November 11 th , 2002 – Monday

Custody is a bundle of rights; rights to make decisions. Issue of mobility – evolution in the law. Change in the law.

Wright

The custodial absent two considerations, in the bundle of rights, had the right to make decisions about where the child would live. Where there was a separation agreement or where the regiment of access in place was of such a quality that it could be concluded that if the child moved, the access regime would be denied. This stood as the law for some time.

There were a serious of cases: Carter and MacGyver. A new theme began to emerge.

MacGyver v. Richards

Request by the mother to move to the US.

Madame Justice Abella developed a theme.

Some of the important aspects of Carter: the decision to move a child is too important a decision to vest in one parent’s bundle of rights. It stood for the proposition that where the parents could not agree, the court has a duty to intervene. The right to move is determined by a singular test: best interests of the child test.

Where Carter becomes different from MacGyver is that Carter gave a nod to the view that the custodial parents wish was entitled to great respect. But it was not a presumptive deference. P.754 “ this is not to say that a parent who has custody may not have important interest bearing on the best interests of the child which are entitled to considerable respect in the resolution of issues related to asserted access rights of the other parent.”

In the wake of the Carter decision, practitioners adopted a three step analysis:

1. Did the custodial parent have a good reason for the proposed move?

2. Was there any obvious benefit or detriment, aside from the reduced access, to the child from the proposed move?

3. Would the custodial parent cooperate in restructuring access?

Of these three, what became the most important was whether the custodial parent had a good enough reason to justify reducing the access.

Mobility cases were defended in the wake of Carter in that there was no reason to interfere. It is the child’s right, as opposed to the parent’s right. [Young p 741-744. 744 “the best interests of the child must be approached from a child-centered perspective. It is not simply the right to be free of significant harm. It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, mortal and emotional well-being, and the milieu in which the child lives.”]

When it comes to access, it is not the parent’s right, but the child’s right.


In MacGyver, Justice Abella, in determining whether or not the custodial parents moves, she took the view that a trial judge should consider the consequences of the move on the future of the custodial parent and the child. P. 759 – “the best interests test has to be understood in its context: it never arises when two parents live together, or agree to a decision about the child’s care.” and “a presumptive deference to the needs of the responsible custodial parent who, in the final analysis, lives the reality, not the speculation, of decisions dealing with the incidents of custody.”

The custodial parent is in the best position to appreciate the effect of the move on a child. There should be a presumptive deference to the custodial parent. The custodial parent is the one responsible on a day to day basis and making long term decisions.

Justice Abella suggests that the best interests test should take the rehabilitative rights of the child recovering from a dissolution of the marriage.

The needs of the custodial parent outweigh the interests of the access parent. “the inevitable genesis of a court having to make a decision is because of some stress and instability. To minimize stress, the court should be respectful of the decision making capacity of the person whom the court or the other parent has entrusted primary responsibility for the child. The emphasis should be, rather, on deferring to the decision making responsibilities of the custodial parent, unless there is substantial evidence that those decisions impair the child’s, not the access parent’s, long term well-being.” [p.760]

Justice Abella says it is an awful thing to put the custodial parent in a position where she has to choose between her child and her marriage (which is what the trial judge did at first instance).

The CA said that reduction in access, which would naturally follow, was not a ground to deny the move. If a move is designed for a singular purpose to deny access, that would be barred.

The result of Justice Abella in MacGyver – she is changing the focus to whether there is sufficient and valid reason for the move and reduce access. Any custodial parent with a good and valid reason to move, should be able to make that move.

A presumptive deference to the needs of the custodial parent should be placed first on the list. Focused on rehabilitating of the custodial parent on creating a new family unit.

Denying the custodial parent the right to be mobile is to potentially harm that person. E.g. if it is the mother, who generally suffers economic hardship after separation, who has the opportunity to get a good paying job from a move, but is forced to stay, that is not in the best interest of the child.

The MacGyver authority changed the approach. It prompted another case to go to the SCC to re-examine the presumptive deference.


Gordon v. Goertz (1996) 19 RFL (4th) 177

McLachlin J– The best interest is the ultimate determination. Most mobility cases result from applications to vary. It allows the statutes to intervene with a required test to assist in determining if mobility should be allowed or not.

In changing a custody or access order, or changing an agreement, the parties must meet a threshold test: Material change. In attempting to vary a court order, the party seeking the change must demonstrate a material change in the circumstances that affect the child since the making of the original order.

The trial judge must be satisfied firstly that there is a change in the circumstances of the child. Something that was not foreseen. This is an initial threshold test.

If the initial threshold test is meet, then a trial judge must start afresh inquiry in determining the child’s best interest.

The SCC – there is no singular focus to the interest of one parent as against the other, each case is unique on its own circumstances. There are no legal presumptions in favour of custodial parents. However, custodial parent’s views are entitled to great respect. (like Carter in p.754)

SCC said both parents bear the evidentiary burden of demonstrating what is in the best interest of the child.

In looking at what is best for the child, apart from the other considerations, the court said these are the important features when focusing on the issue of mobility:

1. Existing custody arrangements . You look at the relationship created in wake of that agreement. What did the parties do? How did they behave?

2. Access arrangements . How often did the parent visit?

3. Desirability of maximizing contact between the child and both parents.

4. Views of the child. The older the child, the more important their view are. Young children may not be able to communicate their views.

5. Custodial parents reason for moving. How relevant is that reason in the parent’s ability to meet he child’s needs?

6. Disruptions that may involve the child were there a change in custody.

7. Disruption as a consequence of actually moving.

When you look at the reasoning of Justice MacLachlin, she relies on the idea of Justice Morgan in Carter.

You must meet the initial threshold test first – material change. Then you go into the territory marked best interests. But with mobility, you must look at the issues on p.769.

Absent a mala fides, this kind of assessment is going to be very difficult to determine. What may add to the importance of the custodial parent’s case may have a lot to do with how long the custodial parent has the child, why they were given custody.

You can see that the custodial parent no longer calls the shots.


Woodhouse v. Woodhouse(1996), 20 RFL (4TH) 337 (Ont. CA)

Parties entered into a separation agreement. The mother was the custodial parent.

The father paid child support and visiting the children.

Before the separation, the father was actively involved with the children.

After the agreement, the parties were later divorced.

Most people roll the separation agreement into the divorce judgment. That was not done in this case.

There was an understanding that the mother had no intentions of moving. There was a provision in the agreement that the mother would give 60 days notice of any intended move.

She later got a boyfriend, and got a job in Scotland. The mother wanted to move with the children. She argued that the job was so good, she would not have to work outside the home and could be a stay at home mom.

She gave the 60 days notice.

The father launched a custody action to vary the separation agreement.

Pending the trial, there was an incident that occurred. She got the father’s permission to vacation over in Scotland. However, she did not come back, got herself a Scotland lawyer and got an interim custody order.

He got an order for the children to be returned. Reluctantly she came back.

At trail, the judge looked at the agreement and the conclusions of the assessor. (s.30 CLRA assessment order). The assessor concluded it would be in the best interest of the mother, but it was not in the interest of the children.

The judge, considered the assessor to be a helpful neutral participant, concluded the mother could retain custody, but restricted the mother to Ontario, refusing her request.

CA affirmed the trial determination.

In assessing that result, the CA observed that it is not altogether that common that separation agreements are kept out of a divorce judgment. The court considered it had jurisdiction to adopt the dicta of Gordon v. Goertz. The reasoning was in part because the language of the separation agreement mirrored the provision s.16(7) of the Divorce Act. This section is the portion relating to custody and mobility – it requires custodial parents to provide notifying to the access parent.

The court concluded the language of the separation agreement was designed to give the access parent an opportunity to challenge it. The court would then decide. Both parties agreed that the move to Scotland was a material change – threshold test.

The CA was not going to be hung up on technicalities that it was a separation agreement as opposed to a court order (Willick authority – p.779). Willick is important – focuses on decisions that trial judges must make in relations to children. A court always has the last say for what is in the best interests of the children.

P.779 – the court also borrowed from the discussion, s.16(10) & s. 17(9) – both sections advance the notion in the phrase, “maximum contact.” S. 16 (10) – first instance. S.17(9) – varying original custody orders. This court was adopting hat theme.

CA also gives emphases to a number of factors – echoing the Carter v. Brooks authority about looking at the existing custody and access agreement, position of custodial parent and ability of the custodial parent to meet the needs of the child. (p.779)


The court gave some measure to the mother’s argument of economic advancement. P. 780 – she said “let me move to Scotland because my economic situation will be enhanced.” The court also balanced this against her pre-trial conduct (78-782). The trial judge didn’t place must attention to it, but the CA looked at it. The CA thought otherwise. P.782, “the mother’s actions in remaining in Scotland with the children beyond the agreed…contact with their father.”

In distinguishing between the result in Gordon v. Goertz and the Woodhouse, in the Woodhouse case, the court found that the relationship had not altered or diminished. In Gordon, there was a difference.

In the Woodhouse case, the court found by virtue of the fathers economic circumstances, he didn’t have the means to make time to create large portions of access that would be in place of the weekend access he had.

Dissenting opinion – 783-85. Justice Osbourne acknowledges that the principle of maximum contact [s.16(10) and 17(9) of the Divorce Act] is important in matters of mobility determination; it should not be given the weight that the majority gives to it. It should be one factor. The second aspect of his dissent is that he determined the assessor had a bias. He concluded that was tandemount to the courts adopting a presumptive deference. He concluded there should not be a preference given to one or the other.

Any practitioner that does not consider mobility issues in the separation agreement may be at fault.

ACCESS – [Visiting rights of the non-custodial parents]

Features about access:

1. Access issues are determined one of two paths:

a) Pursuant to the Divorce Act as corollary relief. Determined at s.16 – original applications & s.17 – applications to vary access.

b) CLRA – s.21 – (like s.16 of the Divorce Act) S.21, CLRA deals with applications of first instance. Also, s.29 (equivalent to s.17 of the Divorce Act). Varying orders.

2. The second feature about access are some statutory provisions that add something about what access it. It is something more that just visiting the child. S.20(5) of the CLRA , gives the access parent the right to receive information about the child’s health, welfare, schooling, etc. Under the Divorce Act, 16(5) 7 (10) – rights of parents.

3. The test is the same for determining custody: the child’s best interest. This is the same under either statute.

4. Access is the child’s right, not the parent’s. It has everything to do with the child’s right to interact with the parent. Note ‘access’ as discussed in Young.

5. The type of access orders span two extremes:

a) ‘Specific access’. This means that every moment is spelled out in time. e.g. every second Sunday between 8-10pm. It provides little flexibility because the object is to ensure certainty. Specific access cases are the norm when there are two people that cannot talk to one another.


b) ‘Reasonable access’. This means that the access will be reasonable as the parent’s determine. It can be anything the parents want it to be. They can put the interests of the children first. It allows for flexibility. You can have some mixture of the two.

6. Access by a court may be limited, supervised, or denied where there is ‘real or apprehended danger or risk to the child.’

7. Depending on the degree of risk, a court may consider the option of supervised access. Most judges consider this a short-term option. E.g. when allegations are raised, until they can be tested, supervised visits may be ordered.

In the test, compensatory access. The theory is that where a custodial parent abuses access provisions (e.g. deny access by lying and saying the child is sick), there has been discussion by where if you can prove that the custodial parent acted in this manner, there should be compensation for the access parent. The only remedy for the access parent is to initiate a contempt proceeding. Under the CLRA, you initiate this. It is a brutal process – you may be asking to put the custodial parent in jail. This does not send a good message to the child.

DOMESTIC CONTRACT

In the past, any agreement between married people that was developed in contemplation of their future divorce was deemed void as against public policy. People choosing to marry one another were obligated to stay together. So, any measure of support for an effort to contemplate separation would undermine the policy.

However, that was the subject of a single exception: separation agreement. The law required this exception to operate only where the parties were actually separated. Then they may draft and rely on a contract to be enforced.

This remained the state of the of law until reform legislation: Family Law Reform Act.

The FLRA did the following:

1. It recognized a class of contracts referred to as domestic contracts.

2. It broadened those classes of people who could take advantage of the contract and go beyond those who were married to include common law spouses.

3. It allowed for the making of contracts during as well as after separation.

4. The statute established formalities. It stipulated ingredients as to form and content.

[These four elements were carried over to our present day statute.]

Domestic Contract , s. 1(1) & s.51. s.51 – means a a) marriage contract, b) separation agreement; or c) cohabitation agreement.


Each type of domestic contract is defined more fully in the sections that follow s.51.

S.52(1) Marriage contracts – A man and a woman who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property; (b) support obligations; (c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and (d) any other matter in the settlement of their affairs.

s.52(2) A provision in a marriage contract purporting to limit a spouse's rights under Part II (Matrimonial Home) is unenforceable.

What can a marriage contract address? It allows the making of agreement that has to do with their rights and obligations during marriage, on separation, annulment or dissolution or death. Four operating circumstances that allow the contract to have force.

You can have provisions that address ownership or division of property. It allows you to contract out of NFP.

You can address child support obligations: spousal and/or child.

You can put in provisions about future children as it has to do with their education or moral training. You cannot address custody and access.

You can address how they may deal with their respective estates, the determination of the relationship at the end of divorce, releases of certain rights, etc. It is wide and broad.

There is a second exception. S.52(2) – don’t confuse this with issues of ownership or division of property. It says you are not permitted to fool around with the possessory right of the matrimonial home. Remember s.19 – it says if you are married both spouses have the equal right to occupy the home.

So, there are two exceptions to marriage contracts :

1. You cannot address custody and access, and

2. You cannot fool around with the right of access of the matrimonial home.

In the FLA, when you come to deal with a marriage contract, there are these two restrictions.

But, beyond that , there is a whole array of things you can address.

Beyond the marriage contract, there are other people who are not married who will be loaded down with liabilities. So the legislature said we should give them rights.

Available for both heterosexuals and homosexuals there is a cohabitation agreement – s.53:


s.53(1) Cohabitation agreements - A man and a woman who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,

(a) ownership in or division of property; (b) support obligations; (c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and (d) any other matter in the settlement of their affairs.

s.53(2) If the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be a marriage contract.

A cohabitation agreement is:

1. An agreement between two people of opposite sex or same sex.

2. The agreement may be created by parties who are cohabiting or intend to cohabit. It may develop before cohabitation.

3. s.53 allow the contract to operate during certain time frames (before the cohabitate, during cohabitation, when cohabitation ceases, in the event of the death of one of the spouses.)

What can cohabitation agreements address? Everything that a marriage contract can with some exceptions.

It can address ownership in or division of property.

Support obligations. (as to children) matters dealing with education, etc. But they cannot address custody and access.

They can deal with anything.

No possessory right of the matrimonial home because people who live together do not legally have a matrimonial home and those rights do not apply. (they are not married.)

S.53(2) – If parties of a cohabitation agreement marry, the agreement then becomes a marriage contract.


Separation Agreements. – s.54.

Section 54

(1) A man and a woman who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property; (b) support obligations; (c) the right to direct the education and moral training of their children; (d) the right to custody of and access to their children; and (e) any other matter in the settlement of their affairs.

It applies whether you are married or same sex. It applies when the parties decide to separate.

It is an essential part of the right to contract that they have actually cohabitated.

Note: S.59 – Paternity agreement is not a domestic contract. There is no period of cohabitation.

S.54(a-e) Type out. In (a)should they reject equalization, they can opt out.

S.56(1) – Contracts subject to best interests of child – In determining a matter respecting the education, moral training or custody of or access to a child, a court may disregard any provisions of a domestic contract (marriage, separation or cohabitation ) pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

When you have two adults negotiating they are advancing their own self-interest. The court can always amend a provision of the contract to ensure the best interests of the child.

The test is that provision is the best interest of the child. NOTE: a Part IV there is no definition of the term best interests. Remember at Part II, it was defined. What is likely to happen is that the court will take the definition in s.24(2) of the CLRA.



Recap:

To date, we address the rules for dividing property – Family Law Act; NFP, Equalization, Trust doctrines.

Rights to possession of occupancy for matrimonial homes.

Quantifying spousal support

Custody and access.

Now we will look at the scheme to give parties contractual freedom outside the statutory scheme. Part IV of the family law act allows for this ‘opting out.’

Classic contracts: (1) marriage contract, (2) co-habitation agreements, (3) separation agreement

Two restrictions: parties prior to the birth of a child cannot determine issues of custody and access, and cannot change the equal right to the matrimonial home.

Separation agreement is fairly wide open.

We began to assess whether there were statutory restrictions apart from those of custody and access

Section 56s.56(1) Contracts subject to best interests of child - In the determination of a matter respecting the support, education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

s.56(1.1) Contracts subject to child support guidelines – In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract or paternity agreement pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract or agreement.

s.56(2) Clauses regarding chastity - A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another.

s.56(3) Idem - A provision in a domestic contract made before this section comes into force whereby any right of a party is dependent upon remaining chaste shall be given effect as a contingency upon marriage or cohabitation with another.

s.56(4) Setting aside a domestic contract - A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (b) if a party did not understand the nature or consequences of the domestic contract; or (c) otherwise in accordance with the law of contract.

s.56(5) Barriers to remarriage - The court may, on application, set aside all or part of a separation agreement or settlement, if the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse's remarriage within that spouse's faith was a consideration in the making of the agreement or settlement.

s.56(6) Idem - Subsection (5) also applies to consent orders, releases, notices of discontinuance and abandonment and other written or oral arrangements.


s.56(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary.

S.56 – addresses the number of restrictions on what can be addressed in any one of the three types of contracts. [TYPE THIS OUT.]

There is no definition in this section of the best interests. S.24(2) of the CLRA is where you could get the definition.

S.56(1.1) – the contract, any one of the three, as it relates to issues of child support may be the subject of variation of the court. It is the effort of the legislature to make sure the courts have a supervisory role to protect the interests of the children.

S.56(2) & (3) – Dum casta clauses. It says that any such provision is void regarding dum casta.

A dum casta – a provision in a separation agreement that says if the woman is receiving spousal support her entitlement to continue receiving spousal support rests with her remaining chaste – she cannot be sexually active. This was a standard clause in agreements.

There is a condition that the parties may contract certain terminating events as it relates to spousal support. There are two recognized by s.56(3) – spousal support will end when the payee remarries or resides in a common law relationship. That does not offend it.

Marriage contracts are very rare. Separation agreements are common.

Marriage contract – a few observations. The circumstances when you are most likely to see a marriage contract when:

1. Second Marriage circumstance. Typically when one party has been burned.

2. Rich-Poor syndrome. One is rich, the other isn’t.

3. Old-Young syndrome.

Next observation has to do with the content of the marriage contract:

Parties can craft whatever they want. The question is the enforceability of provisions. The most common type of example where enforceability is at risk is where persons describe services that each will provide for the other during marriage. These are service contract aspects. E.g. who takes the garbage out.

While you can put a lot, service obligations are generally something that you don’t want to put in. If the client insists, you should get a written statement from them that they know it is not enforceable.

In some instances you can rely on the integrity of the contract, and in other instances you cannot.

Today, spousal support is an issue. Parties arise at resolutions having to do with spousal support, e.g. lump sum, and then one party seeks to vary.

Provision so the FLA s.33(4). The legislature’s take on when a court may be able to set aside a waiver of a domestic contract in relation to spousal support. A waiver is a person releasing the other to pay for spousal support. Often, that is in consequence of the other person engaging in a pay off.


There are three situations where a court may be able to set aside the wavier and impose a provision:

1. If in doing the contract, it resulted in an unconscionable circumstance . The term unconscionable. E.g. Bill Gates deserts his wife and provides $500 a month to his wife from the contract.

2. If the payee, who is getting the money, is in receipt of public assistance. E.g. welfare. If there are two pockets to pick instead of the public purse, the financial burden should fall on the private individual.

3. Contract that provides an obligation to pay support. One of two situations:

a) the payor agrees to pay a lump sum. But the deal is that it will be paid in 10 installments;o b) the parties agree the payor will pay for a term period. E.g. $10,000 for ten months. [These are not the same thing. Lump sums are paid tax free and is not deductible. If a fixed term, it is tax deductible.]

If you have either one of these situations, you want to tell the payor to sign an acknowledgment that you told the payor this that if they miss one payment they are in default. If in default, even by one payment, the contract is out the window.

S.33(4) is important.

FLA also prescribes form requirements. These form requirements are identified at s.55 of the FLA. There are three requirement. [It applies to all domestic contracts and any amendment to the agreements]

Form Requirements of Domestic Contracts:

1. Domestic Contract must be in writing. That is not to say that it is illegal to have oral agreements between parties. But the difficulty is that with an oral agreement, it is difficult to prove. Parties may have an agreement that does not have one of the other form requirements, and the FLA may still give it recognition.

i. Note s. 5(6)(g) – allows the court to change equalization. One of the factors a court can look at is any written agreement. Note S.24(3)(d) – addresses the question of ejecting a spouse from the house – exclusion possession being given to one and not the other. There are factors in determining that; best interests of the child, economic circumstances, and violence. It can consider any written agreement between the parties.

2. Agreement must be witnessed.

3. Agreement must be signed by the parties. Having said that, note Geropoulos case. The courts recognized an exception to the general form requirement.

The form requirements apply to contracts in the first instances, as well as any variations.

It also addresses the suitable of these types of contracts by two additional classess of persons:

o a minor; and [s.55(2) allows a minor to enter into a domestic contract, but the contract must be approved by the court.]

o a mentally incompetent person. S.55(3) – allows the mentally incompetent to enter into a contract with court approval. However, in contrast to a minor, the contract must be approved in advance.


There is another area of contractual limitation at part 4:

s.56(4) Setting Aside a domestic contract - A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (b) if a party did not understand the nature or consequences of the domestic contract; or (c) otherwise in accordance with the law of contract.

s.56(4) – these three conditions (a-c) represent a codification. The legislature is codifying preexisting caselaw. TYPE THIS OUT.

With regard to s.56(4)(a) - You have a duty to make sure your client understands this. You should have an affidavit prepared, called a financial statement. It is one of the rules of civil procedure. Rule 69.14 – Financial statements. The rule identifies the form, and it tells you it is a required document in litigation. In a marriage circumstance, it is prudent practice to have both parties prepare a financial statement. it does everything the section requires. Have them sign an acknowledgement that the section was explained, and also the financial statement. Do these two things.

With regard s.56(4)(b) - It shows the need for independent legal advice. So, as a matter of practice, you should attach certificates of advice – it certifies that they reviewed the contract and the client understands. It ensures good practice.

With regard to s.56(4)(c) – it must be in accordance with the law of contract. Basic contract ingredients include: (1) consideration. (2) Valid offer and acceptance. (3) Absence of fraud, fear, duress. There must be true consent. (4). Subject to s.55(2) – parties must be of legal age.

Note the provision of s.56(4) applies to all domestic contracts.

There is a further stipulation at s.56(5) having to do with barriers to marriage. It applies to any one of the contracts, settlements, or any contract or agreement. Any condition which prohibits a parties remarriage is a condition without effect and a court can overrule it. It would be a void condition.

Part I; Also note S.2(10) – it stands for the proposition that a contractual term will trump the act except where the act says otherwise. It recognizes the overriding nature of contracts.

S.2(10) - A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.

It means that as it applies to Part I of the FLA, the contract will prevail. Parties are at liberty to contract out of NFP subject to s.56(4).

Part II of the FLA – rights to the matrimonial home. S.2(10) – recognizes the supremacy of the domestic contract, but for s.52(2). It says a marriage contract cannot address the possessory rights (but a separation agreement can).

Part III. S.2(10) it is subject to: s.33(4) & s.56(4).

S.2(9) – Incorporation of contract in order - allows a court to adopt into an order any provisions in a domestic contract. So, if the parties draw up a separation and later on either one seeks a divorce and asks the court to incorporate the order into the divorce, it can be done.


The provisions of the FLA as it relates to support obligations, these contracts now have some greater force and recognition than that existed before the FLA.

Before s. 35 of the FLA, if parties had a separation agreement and it stated that the payor had to pay and he didn’t, the payee’s remedy was to sue on the contract. Think about this. They would have to get a lawyer. It is very expensive.

Now, S.35 does all the work. You just walk down to the courthouse and get a court order. It is like magic dust. It just turns it into a court order.

S.35 allows a party to a domestic contract to file it with the court. As soon as it is filed, it may be

enforced as if it were a court order. It is assumed by the evidence of the agreement, that the parties have already resolved entitlement and quantum of support.

It may be enforced, but the amount of the support, once you register it, may be the subject of variation. A party can seek to vary it. S. 37 allows for a variation.

Remember with registration, it applies only to the support provisions of a contract. Anything dealing with property division, for example, you get no benefit from s.35. It is restricted to giving court ordered status only for the support provisions and it allows variation as well. The variation provision allow access to s.33 and s.34 of the FLA.

S.34(1) Powers of court. It is very important. It is the grab bag of remedies for support orders.

Part IV – not in the class of domestic contract. S. 59 – paternity agreements. This would be restricted to circumstances of a man and woman, who likely did not cohabit, but had a sexual relationship that resulted in a pregnancy. The parties are able to address it. It looks at the prenatal care cost, etc. This contract stands on it’s own and is not a domestic contract.

Reasons for having a Domestic Contract:

In the overwhelming number of cases of lawsuits started, most are resolved by agreement as opposed to continued completed litigation. That requires you to have a sense of the fact that litigation is a long process and at any stage parties are likely to settle, rather than going to the end.

There is value in a domestic contract. You want to tell a client why they should focus on a domestic contract.

Factors that should weigh heavily: What a client should be told:

1. Hostility of litigation. Litigation is just short of all out war. The client must be warned of this and the toll it will take. It is going to get worse before it gets better.

2. Litigation is time consuming . Pleadings have to be created. Interim motions. Cross-examinations on the motions. Discoveries. Pre-trial hearing. Preparation for trial. Trial. Appeal. A client has to understand. A client has no sense of the time it takes.

3. Cost . It is horrendous. Maybe $350/hour. Court is expensive. You must say to the client, “is this the way you want to spend your money?”


You have a duty to make clear to the client these factors . If you are not direct and upfront, then likely the client will be disillusioned with the legal system, have spent a lot of money, and the client will engender an even greater hostility towards the other spouse. This is an important feature because the clients have a life after litigation. The clients will likely have to deal with one another. So, if this heightened hostility has been created, it will revisit itself.

There are only a few limiting factors in considering a domestic contract:1. Competent, fearless counsel. 2. There must be full disclosure. 3. The lawyer has many hats. What is practical to keep in mind is the two questions most clients

have: (1) how much? (2) how soon?

If you can focus on those questions and are sensitive to marriage breakdown, you will start off as a negotiator. If that fails, then go to the advocator and litigator hat.

There are some practice points:

1. It is not a matter of simply knowing the law, you need to know the art and skill of negotiation.

2. Procrastination in the handling of matrimonial files. Don’t procrastinate.

3. Develop good work habits and effective communication with your client. If the client is left in the dark, they will resent you.

4. Develop a healthy working relationships with the helping professionals. E.g. psychiatrists, social workers, etc. Those who can help your client who is emotionally disabled. Lawyers are not always good at these relationships.

5. Search out and find and develop mentoring relationships. You do not know it all. If you have a mentor, you can make the transition to a good trial lawyer.

CAPACITY AND FORMAL REQUIREMENTS.

Sanderson v. Sanderson (1982), 31 RFL (2d) 320 [formal requirements]

Note: The case makes reference to s.54(1) of the old act which is really s.55(1) of the new act.

The wife brought an action for breach of contract under the rules of civil procedure which allow for a summary judgment.

The contract was a ‘homemade’ separation agreement. This agreement addressed the issue of child support. It was signed by the parties and was in written form. BUT it was not witnessed and lacked one of the three formal requirements stipulated by the act.

At that time, the requirements were a little different – different act. It said if you didn’t meet all three requirements it was void. Today, it would be ‘unenforceable.’

The trial judge’s finding that the child support agreements were valid was upheld on appeal. The rational was that the CA found that this action was not based on the statute. It was a free standing lawsuit. Neither party sought any relief under the statute.

It was a straight action for breach of contract and had its own standing without requirements of the act.


The argument here is that if you get no relief from the statute, assess the suitability of your common law remedies.

P.877 – ‘the wife’s claim is not based on the FLRA, but on the husband’s written promise to pay.”

The statute did not stand in the way.

Geropoulos v. Geroopoulos (1982), 26 RFL (2d) 225

The husband and wife retained separate lawyers.

The lawyers were talking to each other through letters. The letters addressed issues of support, property division, etc.

The wife, took the position that there was no contract because there was no written agreement signed.

The judge recognized that there was a bargain. On appeal it was dismissed.

The reasoning included:

1. The CA looked at case law which set out the rules for recognizing lawsuits or negotiations that were considered separate. [Scherer v. Paletta] Rules of Scherer, are important:

a) a solicitor properly retained by the client, may bind the client. This means the lawyer can bind the decision.

b) that binding is of the solicitors. It doesn’t necessarily bind the court.

c) the court will normally not interfere with the deal made by the lawyer because the court is searching to give effect to the will of the parties.

2. CA looked at the contract itself and concluded:

a) the agreement was complete.

b) it was definite.

c) circumstances drew you to a conclusion that it was intended to be binding.

d) There is no suggestion of any lack of authority on the part of the solicitor.

e) There was no suggestion of any contractual mistake, misrepresentation, duress, or any other circumstance that would impair the resolution.

f) there was no suggestion that the agreement was tenetaive or contingent on the execution of other documents.

Note: A-f are contractual defences. In assessing the inventory, the court said none of those apply.

3. Justice Everlay took the position in interpreting the legislature, that if the legislature had intended to take away from the common law principles, it would have been required to do that with express language. There is common law authority for how you created deals and bind them.

4. The court found the formality section did not impair the contract.

5. The court concluded the ideal is that these form requirements are met. But, failure does not detract from the validity provided you have common law principles.


Campbell v. Campbell (1985), 47 RFL (2d) 392 Husband had acted on his own without a lawyer. Wife had the lawyer. He signed, as accepting, a letter that set out terms of the deal. They both signed. What it lacked was that it was not witnessed. Later, the husband raised this as a defence. The absence of the witnessing was a defence in that it was a

defect in one of the formal requirements was not met. The court found no merit and concluded:

1. The agreement was an unqualified agreement. P.8812. The agreement was not a contract to enter into a future agreement. It was sure and certain.3. The court said it would not side with the husband because he was trying to escape the consequence for his failure to arrange for his own counsel. He knew what he was getting into.4. The court takes a novel position of the meaning of the term ‘witnesses’ and what it means. The rational for having the agreement witnessed is to ensure the parties didn’t sign under duress – proof of it. In the absence of evidence, the court was not going to be hung up on that requirement. P.881 “the requirement of the witnessing of an agreement is to ensure that the parties in fact signed it and that there was no duress or other grounds to refuse its enforcement.”

The court was not going to tolerate the husband’s failure.

The ideal is that there be compliance with all of the requirements. If there is a failure of any one of the requirements, these cases give you something to think about.

EFFECT OF A DOMESTIC CONTRACT {consequences}

Divided into two broad areas: Property and property division (this is settled). The court will not review property division.

S.2(10) of the FLA. In a domestic contract that addresses something provided for in the contract, the contract prevails, unless the statue provides expressly otherwise.

Spouses have the right to contract out of Part I, subject to the consideration of s.56. So, if they don’t like NFP, they can reject it and craft their own deal about who gets what at the moment they separate.

How courts react to the efforts by parties to contract out of NFP and equalization: key sections of the act: s.2(10) of the FLA – advances the proposition that a domestic contract will prevail over the statute, unless the statute specifically stated

56(4) – where a court is clothed with authority, it may set aside the terms of the contract.

How do courts interpret the agreement?


(1) Property

Nurmi v. Nurmi (1988), 16 RFL (3d) 201

Facts:

1. These were married persons. Marriage lasted five years.

2. Shortly after they got married, the husband gave the wife a homemade marriage contract. The deal was that the wife released her claim of interest in three identified properties owned by the husband: (a) the husband’s house (b) RRSP (c) investment capital. In the deal, p. 884, “I do hereby release” (she was not an owner in any sense.)

3. The agreement made no reference to the statute in place, and no reference to Part II of the statute [possessory right of the matrimonial home].

4. They had talked about this agreement. The husband said that I told her that she signs the deal or there is no marriage. She acknowledged that.

5. Neither party had independent legal advice or made full financial disclosure.

6. When they separated, she started a divorce. She joined in the divorce action a Part I family law claim. She wanted her NFP.

In the decision, said we will equalize everything except those three assets in the agreement. The court said those things would be exclude s. 4(2)(6).

Five years later they separated.

In the divorce, the wife wanted NFP and equalization. She wanted the valuation of the three properties to be included in the NFP and equalization.

The question of the form of the contract: “I have not been referred to any contract case law which requires particular placement of signatures or form of wording in order to validate a contract and I find that ex.6 in its present form constitutes a domestic contract, although obviously its form is not a preferred one” (p.884)

Issue of consideration: the promise of marriage itself was the consideration of the agreement.

Issue of absence of formal disclosure or independent legal advice: the court was satisfied that at the material time both understood the meaning of the agreement.

The most important argument advanced was that the contract was defective because it must have interfered with her Part II family law rights – rights to the home.

Note 52(2) of the FLA – part of the marriage contract definition. Provisions with a marriage contract are not enforceable. So, if you tamper with the rights it makes those provisions unenforceable.

The court concluded that the purpose of s.52 was to address the possessory rights and rights respecting alienation of the matrimonial home - S.21.

When you address Part II, it does not preclude a party entering into a marriage contract from addressing ownership in the matrimonial home. It falls under part I.

“I must disagree; Part II of the FLA specifically limits a spouse’s powers respecting alienation and possession of a matrimonial home; that Part does not address a spouse’s right to enter into a contract respecting the ownership or degree of ownership of a matrimonial home. S.52(2) renders a contract unenforceable only to the extent of Part II of the Act. In that contract between these parties did not address possession or alienation, the applicant’s submissions on this point must fail.”


The court recognized the agreement. It did not tamper with possessory rights. It was contemplated in s.4.(2)(6) – defines excluded property. Any piece of property that the parties by agreement choose to exclude.

The court adopted the contract and excluded those pieces of property.


November 18 th , 2002 – Monday

Bosch v. Bosch (1991), 36 RFL (3d) 302 {You get a contrasting view from Nurmi}

Parties entered into a marriage contract before marriage.

The important term of this contract is that the contract provided that the parties would be separate as to property. Additionally the contract did not provide for mutual property release (giving up your claim to property).

The contract stood for the proposition that each party would continue to own what each party had title to. That was it.

Years later the parties separated.

The wife requested NFP and equalization

The husband wanted to exclude the largest of the assets – the home. He wanted that out of NFP.

At trial, the judge determined there should be equalization and the court included the value of the home in the determination of NFP.

The wife acknowledged at trial that the purpose of the contract was to ensure that ownership of the home remained in the husband’s name.

Issue on appeal: Did the trial judge err on including the NFP?

Appeal dismissed.

The court puts front and center the idea that a court should give effect to the intention of the parties as stipulated in the contract. “Every effort must be made to give effect to the intention of the parties expressed in a domestic contract, and since a domestic contract validly made before the coming into force of the Act is deemed by s.60 to have been made pursuant to the Act, its intent should not be defeated simply because its language did not accurately anticipate the Act.” (p.886)

CA was clear that contract drawn up before 1986 could be recognized and should be recognized. Where the intention is clear enough that the parties intended to exclude a piece of property, that a court was entitled to give effect to that. Authority Engel – Pre-family law act contracts can legitimately advance the notion that NFP may be limited and property may be excluded if the intention is clearly recited.

P.886- the marriage contract displaced a scheme that NFP equalization would envisage.

Bocsh agreement addressed ownership.

The only import feature ownership plays is determining which pile it goes into in determining NFP.

“Under the FLA 1986, neither ownership or any interest in the property of the title holding spouse need be interfered with, as it is only the value of assets that is equalized. Therefore, provisions in a marriage contract dealing with ownership of property during a marriage or even after its dissolution may not be sufficient to prevail over the equalization provisions of the Family Law Act.”

The act itself created a new right.

4(2)(6)

For parties to exclude its operation they would have to be very specific.

If you simply address ownership, that is not sufficient to avoid the provisions of equalization. To avoid it, it must be clearly stated.


“The marriage contract is silent not only upon the dissolution of the marriage but also as to their matrimonial home. Parties are not precluded from agreeing to exempt the value of the matrimonial home from the equalization process or from agreeing that the spouse who owned the house prior to marriage will deduct its pre-marital value in the equalization process. The marriage contract in this case cannot be taken as doing either.”

Dissent: He found the language was clear. The intent of the parties was to exclude it.

Courts generally will abide by the provisions of agreements entered into by parties as it revolves around property.

SPOUSAL SUPPORT

Know themes and arguments.

Fyffe v. Fyffe (1988), 12 RFL (3d) 196 (Ont.CA)

Parties had originally separated and litigated their differences under provincial legislation in 1982. They resolved that litigation and used minutes of settlement. Minutes of settlement in writing are recognized as domestic contracts.

Four years later, 1986, the wife initiated a divorce action. She is asking the court to change the provisions as it related to spousal support.

Go back to the minutes of settlement.

In 1982, the minutes provided for a lump sum payment of $260,000. In return, he got a release. It was an all encompassing blanket release – property and spousal support.

In 1986, the wife wanted spousal support. She said that things had changed since 1982 and she now needs support. She said there had been a material change in circumstances warranting the court’s intervention. She relied on two changes:

1. Since 1982, there had been a material decline in interest rates.

2. Post-1982, the husband’s financial circumstances had greatly increased because he had a severance pay.

She convinced the trial judge to override the terms of the agreement.

CA, in framing the issues, the court will not override a valid settlement agreement unless there is a radical change.

The court considered: Was there a radical change in circumstance? It concluded that it was difficult to conclude that the change in circumstances was of a sufficient magnitude to justify overriding the minutes.

The court accepted the husband’s submission that in part the change was caused by the wife’s unwise investment of capital from the lump sum.

Change of interest rate: ‘the change in interest is totally unrelated to the marriage.’

P.892 – change in interest rates in not an unforeseeable event.


Had the interest rates doubled or the wife invested wisely, would the husband have been successful on an application to vary? Not likely.

The court concluded the agreement did not address interest rates because the respondent wife was to be at liberty to determine what, if any, would be invested.

So, the court concluded that there had not been a material change.

It is a pure Pellech analogy.

Smith v. Smith (1990), 27 RFL (3d) 32 (Man.C.A.)

In the separation agreement, the husband was required to pay fixed amounts for spousal support.

There was no provision within the contract allowing for future variation based on material change.

[A standard of provision of domestic contracts is a variation provision]

After the contract was signed, the husband suffered a stroke. In consequence, he was not able to work and was in receipt of a fixed disability pension. The pension, and his entitlement, was for a fixed period. At the end of which it would terminate.

After the separation agreement, but before the stroke, the provisions of the separation agreement were incorporated into their divorce judgment.

Issue: Does the court have the power to vary when there was an agreement which had no provision for variation?

The CA, 893, makes reference to Pellech. It concluded that Pellech did not suggest that a court lacked jurisdiction to vary support even where the support provision were fixed by agreement. Generally, the intentions of the parties should be conclusive except where there is a change of a catastrophic nature.

The court also distinguished the Pellech authority because Pellech was a case where the application sought to continue support obligations in the face of an agreement that terminated.

In this case, there was a continuation to pay. The causal connection arose from the fact that it was created during marriage breakdown – p.893 – midpoint.

The question was whether there was some radical change in circumstances to warrant the court intervening.

The court was not satisfied that there had been a change in the wife’s circumstance.

The court concluded that the stroke and the consequence was enough to warrant variation.

P.893 – “In my opinion, the alleged improvement in the financial circumstances of the wife and her alleged failure to strive for financial self-sufficiency are not changes of a kind which would warrant judicial interference with even a court-confirmed agreement with respect to maintenance. As to the periodic changes in the husband’s income, I am not satisfied that they were changes of the character required. The learned trial judge’s decision that the stroke did not bring about such a change is inexplicable.”

The court was also of the view that it could address a variation in the present as well as perspective. E.g. pension disability would be addressed and what should be in place when the disability pension ended.

P.893 – “ in considering the husband’s financial circumstances…replaced.”

The court was satisfied that the variation was warranted.

The case says that the nature and quality of the circumstance must be of an extreme nature.


Masters v. Masters (1991), 34 RFL (3d) 34 (Sask.CA)

Illustrates how narrow those exceptional case circumstances will be where a court will intervene to set aside the terms of the agreement.

Facts: the agreement stipulated a final spousal periodic support obligation. One was to pay to the other and there was no termination event, no opportunity for variation.

Subsequent to the separation, the wife initiated a business operation. The husband advanced her start up funds, in addition to support.

The business succeeded. She repaid the start up funds.

She was earning $60,000 per year. Yet he was still paying child support.

He wanted variation. The trial judge dismissed it.

The judge said the parties made a bargain. They must live with it.

The husband appealed. Appeal dismissed.

The CA embraced the Pellech authority – only in limited circumstances will a court intervene.

Principles enunciated here:

1. Parties should be held to their contractual bargain and releases in exceptional circumstances.

2. An agreement should only be overridden in the event of radical unforeseen change in circumstances causally connected to the marriage.

3. There had been no change that was causally connected to the marriage.

4. It was a final bargain and no reason to let one of the parties out.

Dissent p 895-97 – takes the Pellech trilogy as affirming an economic partnership support model. The dissent views that if a payee has no need for support, then that by itself is a reason to vary the obligation. The need that was there that originally created the obligation is no longer there. [if that objective was recognized, then that could negate the utility of support paid for compensation purposes which is recognized in case law as a suitable and appropriate purpose for SS.] The Dissent continued to say that if the payee achieved self sufficiency, then that by itself is a reason to allow the bargain to be set aside.

The husband appealed to the SCC. It was dismissed. SCC found no error:

The agreement was final, no unforeseen or radical change in circumstances.

SCC said it was not necessary to address causal connection because the appellant payor failed to demonstrate radical change in circumstances not contemplated by the parties. “No error by the trial judge…It is therefore unnecessary to consider…”

They sidestep this issue.

Radical unforeseen standard continues to apply to applications to vary support order.

McLeod Annotation:

McCleod is critical. Feels the SCC has been ducking the issue.

When you compare Moge to Masters, there is a conflict in the law. Both address spousal support variation, but each has a different result and rational.

In Moge, the Pellech trilogy did not establish the basic support model. It was a rele for overriding agreement. At first instance, it was free from a causal connection analysis.


Masters has not overruled the Pellech trilogy. The trilogy still has life, but is limited in its application to final bargain cases.

McLeod says there is an inconsistency as it applies to SCC of settlement cases.

B.v. G. (1995), 15 RFL (4th) 201 (SCC)

Parties divorced in 1986 – long term marriage.

During the marriage, the wife assumed the largest share for the home and child care.

When separated, they had an agreement. The husband had to pay spousal support – fixed periodic monthly sum. There were circumstances where there would be a calculated deduction. The deal was he might get a reduction if she were to secure income of a certain level.

P.989 – At the time they entered into the agreement, the wife was dating a person she later moved in with. At the time she was 53, not in the workforce. This person was giving her $1300 a month and advanced her $45,000 to buy a condo.

The husband thinks she is getting an income sufficient to cancel the support obligation.

At trial, his case failed.

Que.C.A. did vary it.

SCC allowed the wife’s appeal. SCC reinstated the obligation.

Sopinka stated, “The obligation for a moving party to seek a variation, the onus was on that party to prove a material change in circumstance.”

The court concluded the circumstance of the wife’s cohabiting with the new partner was foreseeable at the time they were negotiated the agreement. This suggests that the court is started to argue that if there are facts known at the time of the original bargain, then a change arising from those facts cannot be used to vary.

SCC said you have failed to show material change and they don’t have to address the application of the trilogy.

L’Heureux-Dube – she agrees with the result of no change and no variation – dismissal. She had a different focus. The threshold that has to be achieved before making any assessment. “the question here at issue must be considered in light of the 1985 act, and the criteria that flow from it, as interpreted in Moge. First, it must be determined whether a sufficient change has occurred between the parties to require the Court’s intervention. Second, the Court must assess the effect of the agreement in light of the factors and objectives that govern spousal support under the Act.” (emphasizes the statues as opposed to the case law trilogy)

For her, this case raised the issue of whether increased radical unforeseen standard should continue to apply in restricting the court’s power to award support under the divorce act. She concluded that, minority view, while the agreement is relevant, it is not the overriding consideration. She is parting company with the trilogy. She is expanding the discretional power of the courts relative to spousal support under the divorce act.

The circumstance of each case will be important in determining whether a court will intervene.


The model L’Heurueax-Dube created included the following provisions:

1. An applicant seeking to vary must prove one thing first,” material change in circumstance...She is not talking a radical.

2. If a material change is demonstrated, then the court must look at the extent of any variation. Looking at the extent requires a court to make an assessment of the entirety of their current circumstance. You look at all of their financial circumstances. [Willick authority]. P.901“once a sufficient change that has “

3. She puts the notion of causal connection in a reduced spot. The notion of causal connection fits only to the extent that it accord with the principle and objects of SS under the Divorce Act. “In s.15(5) no mention is made of necessary causal connection…set out in the 1985 Act.” P.901

The circumstances of the wife living with another man did not disentitle the wife to support. There was no proof of self sufficiency.

Miglin

SCC presently is addressing the Miglin case. They have reserved.

Miglin involved a separation agreement that employs a full release.

It involves married people who entered into a separation agreement that provided for mutual releases. There was also a companion agreement addressing a business operation. In that agreement, the wife was to be paid a fixed yearly amount to be adjusted for cost of living. At the end of that fixed yearly amount for a period of 5 years, the wife initiated an application seeking spousal support.

The trial and CA concluded that the companion agreement was a guise for a spousal support provision. Moreover, the court found it was not in any way restricted by the Pellech trilogy because the Pellech trilogy was three cases decided in 1987 having to do with the 1968 Divorce Act. The Pellech trilogy involved the predecessor Divorce Act. The Mighlin case involved an agreement in 1985. Pellech applies to the Divorce Act under 1968 legislation. It is not the governing theme for the 1985 Divorce Act. CA said there is no basis for distinguishing final separation agreement and prior order cases. Both have the same obligation to prove material change in circumstance.

CA decision has cause a lot of controversy. When is an agreement final? Does a court always have an overriding discretion to interfere?

The Pellech trilogy is not quite dead yet. Applies to final agreement and variation. The movement by the SCC away from the trilogy in its effort to restrict it and advance that it should be the result of material change, and if so to apply the variation principles of s.17.


Courts intervention under the FLA:

S.33(4) – Setting aside domestic contract. A court may set aside an agreement. The court must be satisfied of conditions that apply: unconscionable, if the payee is in receipt of public assistance, if there is a default in the payor.

How have the courts intervened?

Newby v. Newby (1986), 56 OR (2d) 483

Long term marriage.

Separation agreement provided for a modest spousal support allowance.

The wife entered the agreement and had the benefit of independent legal advice. The suggestion was that she entered the contract freely.

Subsequently, she initiated a divorce action seeking spousal support.

The husband has experienced a financial improvement.

The court was asked to consider the provision of S.33(4)(a). The court concluded:

1. 33(4)(a) contemplated circumstances that may arise in the future. If this had not been the intention of the legislature it would have said so (p.909).

2. Factors to be taken into account (p.910-11)

a) Facts surrounding the signing of the separation agreement. You ask the question, was there independent legal advice, evidence of volition, was there undue influence, questions that focus on the health of the parties and how it may affect employability, was the agreement negotiated in good faith? [It bears on the ability to give instructions and the assessment of her state of mind]

b) What are the results of the support provisions in the agreement?: was it favorable to the wife, was it fair? On these points, look a p.910 – the court found that the contract was not fair. “I found that the.. lacking… unrealistic…petitioner.”

Next, you look at the state of the parties, the means of the parties at the time of the variation hearing.

You consider their ages, current health, and assess their financial condition and worth and assess the disparity between the parties.

Looking at these factors, the court found the contract was unconscionable. “I have found as a matter of fact that the provisions for support in the separation agreement have resulted in unconscionable circumstances. Should the court intervene and exercise discretion to set aside the support provisions of the separation agreement? In my view, s.33(4)(a) is an exceptional remedy which would only be exercised in exceptional circumstances. To do otherwise would be to encourage spouses to negotiate in bad faith with the knowledge that if one of them is not satisfied at a later date with the terms of support, he or she can always come back to the court to have it changed.”

This is an exceptional provision. Otherwise you encourage bad faith bargaining.

The facts concluded it was an unconscionable deal. Factors consider included the seven factors listed on page 911 and 912.

It raises questions about:

a. The freedom f the parties to negotiate, and

b. The integrity of the deal where they negotiated in good faith with individual legal advice.


Salonen v. Salonen (1986), 2 RFL (3d) 273

Separated and signed a deal. It dealt with all issues. There was no provision for spousal support.

The reason why there was no spousal support is addressed at p.,912. when the wife was negotiated the deal, she had the intention of living with another person. She did for a little while, but that did not last.

She then as in receipt of social assistance.

The court relied on the dicta in Parro and reasoned: “ As a general principle, it is not for the court to remedy a bad bargain. The agreement was in accord with the objectives of the statute which encourages parties to enter into voluntary negotiations to settle differences. In my opinion, I ought to give effect to the agreement unless compelled to do otherwise by a substantive or gross change of circumstances that demands I do so”

The court was not prepared to allow for intervention. It was concerned that it would create mischief in the provisions of the statue, the object, was intended to apply where the marriage created economic dependency, and the marriage term resulted in economic loss and disadvantage to the party.

This is a 7 year period of cohabitation – not long.



Cases that have to do with s.33(4) of the FLA. It addresses waivers of support that are included within a domestic contract. It allows for three circumstances where a court may intervene:

1. Circumstances are unconscionable. 2. Payee had waived support and is in receipt of public assistance.3. Payor is in default. E.g. the payor agrees to pay a lump sum and not paying it.

Newby explores the limits of s.33(4)(a). The period of cohabitation in that case was 23 years. Salonen – period of cohabitation was only 7 years.

Salonen v. Salonen (1986), 2 RFL (3d) 273

Considerations in the decision: (p.913)

1. The court relied on the Parro authority, and wanted to give assurance to parties who entered into contracts, that the sanctity of contracts should be respected.

2. The court made it clear that access to s.34 is not done easily.

3. S.33(4) were only to apply where:

a) the marriage itself created economic dependency; or

b) where the marriage term created an economic loss or economic disadvantage.

[The court could not find support that there had been genuine economic dependency or economic loss.]

4. Recourse to s.33(4) must be used with caution and sparingly.

5. The court addresses competing interest. S.33(4). The right of the public where one of the spouses is in receipt of public assistance, that the other spouse can meet that need. The second interest is the right of a spouse to seek support where a contract has foreclosed that possibility, and third, the protection of the contract by the court.

The court at the end of the day was attracted to the dicta of the Pellech trilogy. It opts to protect the greater public interest having to do with the sanctity of the contract.

It considered 33(4) to have application only where there was causal connection.

In order to advance a s.33(4) argument,p913, you must include additional features:

1. There must be some issue of the parties good faith intentions. The bona fides of the parties when entering upon the agreement should be seriously and obviously in question.

2. The means of the potential payor paying spouse is such that if the recipient were left on welfare, the public would reasonably be outraged. E.g. Bill Gates leaving his wife and she only collecting $500 a month is spousal support.

3. Circumstances of both parties have drastically changed from the time of the signing whereby welfare is simply no longer a realistic alternative.


The court should not do, absent these factors, is to step in merely to correct what simply looks like a bad deal. A bad deal is not an unconscionable deal and doesn’t automatically trigger the section.

CHILDREN

Deal with domestic contract where the bargain focuses on the result for child support. The extent of the court to interfere where the parties have bargained inappropriately as to what the child

support should be.

Martin v. Martin (1999), 44 RFL (4th) 125 (Ont.Gen.Div.)

Issue revolves around the rights of parties in a domestic contract which bargains away the child support obligations.

The result was that a potential payee (non-custodial parent) avoids making periodic child support payments.

They separated and drew up an agreement. While it was joint custody, the father had principle care.

The wife agreed to seek no child support.

The court looked at the authority to intervene. P.919

The wife gave up, transferred to the husband, her joint interest in the matrimonial home.

There were a number of identified family debts – likely in her name. She agreed that she would be solely responsible for these debts.

The construct was that he was not going to seek child support from her, and she would pay off the debt and give him the house.

Two years later she declares bankruptcy.

The husband saw that she had more disposable income. He advanced his application that the wife’s bankruptcy was a change in circumstances and that she could now pay support since she had more disposable income.

She resisted based on the following:

1. She relied on a contract. It is the bargain and the court should enforce it.

2. She advanced evidence that despite the contract, she shared ongoing expenses related to the children.

3. Her bankruptcy was not a material change.

4. The frequency of the contact with her children, coupled with the fact that she traveled considerable distance to see them. Access costs maybe a consideration (s.10 of the Guidelines). If the costs of exercising access on the access parent, it may have an affect on the obligation of paying child support.

P.920 – “no agreement between the parties can bar the court’s jurisdiction…” the court always have jurisdiction. The court must ensure the children are protected.


The court found in the agreement that:

a) the transfer of equity in the home coupled with,

b) her assumptions of these debts, and

c) the consequential result that the husband did not have to move.

Each of these features of the contract were matters of value. The court also took into account that what the wife said was accurate. She was continuing to make a contribution to various expenses. E.g. medical, dental, sports.

The court concluded that the deal was intended to benefit the children. The wife had met her obligations. Exchange of value – the court is reluctant to intervene. “I am loath to unravel only one term of a separation agreement. There is no evidence of any material change not anticipated by the parties. The fact that the debts have no been erased by the bankruptcy should be irrelevant, because what has not changed is that the husband’s responsibility for those debts was eliminated. ”

The court also looked at it in an additional way. It considered that what she had done, in conveying her interest and assuming debt, was like a pre-payment on the child support obligation. It may be that in the future a court would find the credits have been used up and the wife should begin to pay child support. That has not yet arrived”

You have to look at how intricate the deal is. Is there indirect benefit conferred to the child?

The matter of whether there is a contract or not and how it affects child support is in s.14 of the Child Support Guidelines. It addresses where the parties have addressed child support in a way other than what is provided for in the guidelines.

Fung-Sunter v.Fabian (1999), 48 RFL (4th) 95 (BCCA)

Separation agreement.

Extraordinary expenses are over and beyond what a child needs. E.g. tuition or orthodontist.

This agreement was made in 1994. It was a pre-1997 case. That is important because in 1997, both at the federal and provincial level, both governments passed legislation. That legislation was called the child support guidelines. Secondly, there is a tax implication: the payor gets to deduct it from taxable income.

The Income Tax Act was amended in 1997 to abolish the scheme. Child support orders since 1997 has no tax implications.

That tax implication continues to live on after 1997 as long as there has been no variation.

Subsequently, they were divorced. At the time of the divorce, the agreement was not rolled into the divorce.

Both parties were represented. They put time into it.

After 1994, the payor’s income increased dramatically.

The payee mother did, was she brought an application and asked for the guideline to be imposed based on:

a) she argued the deal was inadequate.

b) the enactment of the guidelines was enough of a change to trigger an application.

c) the income tax changes were enough to prompt an application,.


P.923 – there was an acknowledgement that s.14 of the guidelines does not apply. S. 14 recites three circumstances where…

the court considered that the applicable section to determine if she should be successful was s.15.1(5). It is a clear section that says the court has an obligation to look at the terms of support in an agreement in determining whether it will implement child support guidelines. (p.923)

The court also said that since this was an application of first instance, the court applied s. 15.1.

Note: the divorce order was silent, it is an application of first instance. S.17 would not apply.

It looks like an application to vary, but it is not. It is an application of first instance.

The court was satisfied that it was entitled to make the order for two reasons which represented material change: the income tax thing and the income increase by the payor. As a result, there was material change.

It is important to remember not to apply s.14 where the divorce is silent, and where the divorce is silent on corollary relief, it is s.15.1(5) that applies – not s.17.

The cases that follow focus on s.56 of the FLA:

S.56 of the FLA is a section which addresses circumstances where you can set aside a domestic contract. S.56(4) – sets out three grounds for setting aside a contract:

1. Failure to disclose.2. A party does not understand the consequences of the deal. (independent legal counsel)3. It lacks a contractual ingredient. E.g. duress.

SETTING ASIDE A DOMESTIC CONTRACT

Whether a contract will be approved or set aside giving the considerations of s.56(4):

Trottier v. Altobellli (1983), 36 RFL (2d) 199 (Ont.CA)

It was not their first separation.

The agreement said that the wife would give up any claim to spousal support as well as any claim against the husband’s assets.

The domestic contract was signed in front of the husband and his lawyer.

She had no legal counsel.

She brought an application to set aside the contract.

At trial it was dismissed.


CA – court was satisfied there was unconscionability as to set it aside because:

1. At the time the agreement was entered into, the wife was experiencing a mental depression. (it is surprising that there was never any medical evidence adduced at trial).

2. It was an unconscionable deal in that she had also made a contribution of value of the acquisition of the property. They had a mutual intention that each was to have an interest in the property.

3.the court looked at absence of independent legal advice.

So, a state of mind of the party can be an important feature. When you couple this with the other features, you get some sense of an unconscionable circumstances.

Crouse. v. Crouse (1988), 88 NSR (2d) 199

Wife seeks to set aside the terms.

Critical feature: when she negotiated the agreement, she gave up custody. He gave up any claim for child support against her.

Months later, the wife took the position that the agreement she signed was entered into under duress – undue influence. She offered these as bars (relying on s.56(4)(c) of the FLA). She argued it should be set aside.

The court concluded:

1. The court asserted the view that there is jurisdiction in the court to vary an agreement based on unconscionabliity.

2. The court cautioned itself against that assertion. It is very difficult to prove where each has had legal counsel.

3. For the wife to succeed, she had to show the bargain was unconscionable because there was an inequality in the position of the parties. That could arise out of ignorance, duress, stress, or whatever. P.929

4. She tried to marshal a case that she was subjected to emotional and psychological forces brought on by her husband. She put the lawyer on the stand.

5. The evidence of the lawyer. The court found the evidence credible.

6. There is a secondary test to be applied after unconscionability was proven. She also had to show that the resolution was substantially unfair.

7. The court concluded that despite having found unconscionability, in looking at the rest of the deal, the court said it is important to look at it as a comprehensive deal. You must look at the deal as a whole.

8. The court found the giving up of the child support was not enough to create an inequitable bargain. But it did conclude that it is important to consider that fact that she has legal advice. “However, it was obvious that the emotional condition of the petitioner was such that she did not have any concern for the financial arrangements and she may as well not have had legal advice.” “Her solicitor, either could not or did not persuade her…evidence of Mr. Knox.”

9. The court looked at the circumstances of the wife outside of the context of her negotiating the deal. They heard other evidence about who she was and what she was like. She was an intelligent, tough-minded individual.

10. She had proven the husband was in the stronger bargaining position. He exploited that situation.


The court concluded the bargain was unconscionable. The deal was substantially unfair when looked at in its entirety.

This case stands for the importance of independent legal advice. The evidence must be of quality.

Best v. Best (1990), 30 RFL (3d) 279

Focuses of s.56(4)(b) – persons understanding the nature or consequence of the domestic contract.

The parties entered into a marriage contract. It was a second marriage from both and both had children.

The parties jointly, consulted a lawyer in order to give instructions. The lawyer was a friend of the husband.

This lawyer who drafted the contract did advise that both of them get a lawyer – each.

[Philips says not to do this. There will be allegations about you later on when they split. Acting for two is a big mistake]

The contract provided that their own assets would remain their own. She has some limited rights to growth in his assets.

The court determined there was sufficient validity that the matter could proceed to trial.

The court also considered these features in addressing the application of s.56(4)(b):

1.The court requires whether there is any concealment of assets or non-disclosure of material facts.

2. The court inquiries about the good faith, bona fides, of the parties at the time they made the contract.

3. Is there volition on the part of both parties? Was there voluntariness?

4. On the facts of this case, the contract never addressed what would happen in the event of a future separation. It was a limited contract.

5. The court found that the wife understood the nature and the consequences and that its objective was to keep the properties separate. Apparently, she didn’t understand the ‘consequences’ in the sense that she was setting up a regime for distribution of property which differed from the provisions of the FLRA.

Grant-hose v. Grant-Hose (1991), 32 RFL (3d) 26

S.56(4) – as it has to do with independent legal advice.

Parties entered into a separation agreement – allowed child support and spousal support.

Note: When the agreement was being negotiated, the husband thought he was seeing a lawyer, but he really was dealing with a law clerk.

A year later, he starts an application to set it aside that he didn’t understand what he was signing.

Court’s findings:

1. P.933 – “the applicant was not a credible witness and I do not believe that I can rely…”As soon as credibility comes into play and the court doesn’t believe him, he is done.

2. The court suggested that even if it had found the applicant to be credible, the agreement was still sound. It relied on Prudential Trust Co. [That stood for the proposition that: (a) the applicant


had signed and executed the agreement. That shows that it is an intended deliberate step. (b) all other parts of the agreement have bee complied with.]

3. The court also considered the applicant had been exposed to the warning section 55.(1), p.934.

4. The court considered that there had been no complaint made about the agreement for a considerable amount of time had passed.

5. The court found that “even had I accepted the applicant’s testimony, I would have found that the separation agreement made was legally binding upon him, and that he would have been unable to assert that, in signing the document, his mind did not follow his hand.”

6. He did get legal advice. What he retained was a law operation. The agent acted on behalf of the husband as the agent of the law center. The wife and her lawyer were entitled to rely on the law firm as the husband’s agent.

7. If the court didn’t conclude #6, then they transfer an additional onus on the wife – qualifications of opposing counsel. That is not her responsibility.

At the end, the court rejected his claim. However, they did allow a variation. Between the time the agreement was signed, and the time they came to court, he had experienced material change in his income. That is why there was a variation.

Dochuk v. Dochuk (1999), 44 RFL (4th) 97 - (disclosure)

The consequences of non-disclosure or insufficient disclosure in negotiating contracts.

S.56(4)(a) – says a domestic contract can be set aside if a party fails to disclose significant assets or liabilities when the contract was made.

The parties did a home made agreement.

Later on, she brings a court application to set it aside. She asks to set it aside on two grounds: (1) No independent legal advice; and (2) Non-disclosure.

There had been no financial statements attached to the homemade agreement.

There was a pension plan and some shares in a company in issue.

Independent legal advice, from the point of unconscionability, the court looked at the test in Rosen. The court confirmed that all of the common law rules continue to apply. To establish unconscionability, it must be proven that they were in an unequal bargaining position.

The wife complained that there had been a pattern of physical abuse. She said at the time of negotiation, she experience fear about getting independent legal advice. (p.939)

The court concluded those allegations were not substantiated. In fact, there was evidence that the wife was very actively engaged in the creation of the contract. Coupled with in the aftermath of the agreement she evidenced a contentedness of the contract and was pleased with the results. She made no effort to set it aside for well over a year.

Delay in moving to have the contract set aside can prove to be prejudicial.

“ The evidence of the parties relationship, the circumstances surrounding the preparation and execution of the separation agreement and the subsequent conduct of the wife, satisfy me that when she executed the agreement the wife was not vulnerable to being preyed upon by the husband. For these reasons, the wife has failed to satisfy me that the contract was unconscionable.” (p.937)


The court next looked at non-disclosure. The husband did not accurately disclose the two assets.

As to the shares, he disclosed he had shares, but they were worth more.

The question, whether non-disclosure in and of itself was sufficient to intervene.

Court looked at two authorities:

(1) Demchuk. It determined that any non-disclosure falls within the ambit of s.56(4)(a).

(2) Underwood. It was determined that the statutory duty to disclose applies to the disclosure of the fall in addition to just listing the assets.

The husband argued that there was no effort to hide – it was inadvertent.

The package had a total value of about $45,000. You must put it in the context of the whole.

The court concluded that value not disclosed was significant and there was a breach of the statutory duty.

What remedy should there be, if any?

The court went back to Demchuk which itemizes questions which should be asked:p.938

1. Whether there had been concealment of the assets or material misrepresentation. Did someone actively try to hide the assets?

2. Whether there had been duress, or unconscionable circumstances

3. Whether the petitioning party neglected to pursue full legal disclosure.

4. Whether the party moved expeditiously to have the agreement set aside. How long have you waited since you found out about this to bring it to court?

5. Whether the party received substantial financial benefits under the agreement.

6. Whether the other party had fulfilled their other obligations under the agreement.

In looking at all the factors, the court found the following:

1. While the husband’s non-disclosure was willful, the wife was not completely mislead. She had some idea.

2. She had opportunity to make inquires. [From a practical point of view, today the law is that the duty is not on you to ask – the duty is on the other side to disclose.]

Summary:

Authority of Demchuck and Underwood.

Demchuk. Must provide disclosure. Demchuk looks at the factors of the case to determine if there is concealment. P.938.

In Demchuk, the parties didn’t go through the NFP formula. They created a series of negotiations that divided up their property.

The court concluded:

1. While the husband’s disclosure was willful, the wife was not completely misled. She had some idea that there were other assets.

2. The court is critical of the wife for not making inquires.

3. Both parties choose to reject legal advice. P.939 – it is clear that she was in it for a quick resolution. “The wife’s principle motivation was a quick resolution…non-disclosure would not have been an important…”

The case tells you it is a lot more than just looking for disclosure or non-disclosure.

A party who does not provide a sworn financial statement probably has something to hide.


November 25 th , 2002 - Monday

CH. 8 - CHILD SUPPORT

Child Support is available by two different statutes:

1. Divorce Act

3. Family Law Act.

[On exam] Explain how the two statutes operate, how they are different, and how that difference may play into a strategic decision that you would make as counsel – hypothetical.

Both acts are governed on the issue of child support, Child Support Guidelines.

The initial challenge for a lawyer is to establish the support obligation. It requires you to focus on “who” is a child.

Divorce Act [Federal]

S.15.1 – (8 subsections)

s.15.3 – Terms and conditions - Addresses the matter of priority to claim in contrast to spousal support. Child support will take priority.

S.17 – Variation applications. That means that at some earlier stage the parties were divorced. Now it is months or years later and one is seeking a variation in corollary relief: custody, access, spousal support, and child support.

s.2 – Definitions. A ‘Child’ – a person under the age of majority who has not withdrawn from their charge (custody) or a child who has reached the age of majority or….but is unable by reasons of illness, disability, or other cause to withdraw from the parental charge. [that is different from the FLA.] – Important for exam – definition of child between the acts.

S.2(2) – Child of the marriage – For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses included:

a) any child for whom they both stand in the place of parents, and

b) any child of whom one is the (birth) parent and for whom the other stands in the place of a parent.

Three circumstances to be a parent:A) A birth child.

B) Adoption.

C) ‘Stands in the place of a parent.’ [loco parentis] It means that you have treated the child …even though you are neither the birth parent nor adoptive parent.

‘withdrawn from their charge’ – That phrase is not defined in the Divorce Act. So, you must find the meaning in case law.

‘illness, disability, or other cause’ – the words ‘other cause’ must too take its meaning from case law because it is not defined by statute.


Family Law Act

Family Law Act [provincial]. Part III, s.29-50.

In s.1(1), there are two words that are defined: child & parent. You will find that the consequence of those two sections is that the child is a child of that person or any person who has treated the child as a settled intention to treat the child as a child of his or her own. [the equivalent is loco parentis under the Divorce Act]

"child"- includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody; (know definition).

"parent" includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody

A child will be a child of the birth parents, adopted, where a person has treated that child as a child of his or her own.

The term ‘settled intention’, is not defined under the FLA, but it is defined in case law.

S.31(1) Obligation of parent to support child - Every parent has an obligation to provide support, in accordance with need, for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. [the obligation for child support is absolute.]

S.31(2) Idem - The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

Between ages 16 and 17, the child support obligation continues. How? As long as the child is unmarried and has not withdrawn from parental control.

The third category has to do with the child 18 or older. They can get child support provided:

A) unmarried, b) not withdrawn from parental control c) full time attendance in school

Theoretically there is not cap on this condition.

As soon as the person gets married, they loose their status.

Both the federal and provincial acts are regulated by the Child Support Guidelines:

Under the Divorce Act, s.15.1(3) Guidelines apply – a court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Under the Family Law Act, the equivalent section is s.33(11) Application of child support guidelines – a court making an order for the support of a child shall do so in accordance with the child support guidelines.


Essential Purposes of Child Support are at s.1:

1. To establish a fair standard of support. To ensure that children get the benefit of support form their parents.

2. Designed to reduce conflict and tension

3. It is designed to improve the efficiency of the process – of the courts and the parents in setting out the levels of child support.

4. To ensure consistency of treatment.

Under the FLA, s.33(7) describes the broad purposes of child support:

s.33(7) Purposes of order for support of child - An order for the support of a child should, (a) recognize that each parent has an obligation to provide support for the child; (b) apportion the obligation according to the child support guidelines.

Under the Divorce Act, s.15(3) addresses the priority of child support to a spousal support. E.g. if there is not enough money to go around for competing claims, the child support must take priority:

s.15(3) Terms and conditions – the court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions, or restrictions in connection with the order as it thinks fit and just.

‘Who’ a parent can be includes three circumstances: 1) Biological 2) Adoption 3) Loco parentis.

Note: s.1 of the CLRA. Children born in and outside of marriage. Now, there is not distinction and they are all treated the same.

Note: parentage, by adoption. [S.158 of the Child and Family Services Act – once a child is adopted, the biological parents are no longer the parents of the kid.]

Finding of parentage. In most cases, it is simple. But sometimes you don’t know or the man denies. Then, you make the ‘finding of parentage.’ CLRA, s.8. there are presumptions of parentage.

Issue of identifying persons who have parent status: (addresses ‘who’ is a parent)

Stephen K. v. Roni L.

Male person who by his own admission was the subject child’s father.

The mother wanted child support.

The father said that he should not have to pay because the mother had failed to disclose to him at the material time that she was not using birth control. He said he was not responsible.

This case in not on the exam.


Establishing Support Obligations:

(1) PROVING PATERNITY

Silber v. Fenske (1995), 11 RFL (4th) 145

Issue of who was the child’s parent.

The mother sought support under s.8 of the CLRA.

S.8(1) Recognition in law of parentage. There is a presumption of parentage in certain circumstances unless proven otherwise.

S.8(1)(5) – the person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada. This is one of the circumstances where parentage is presumed..

In assessing whether the person was the parent, the male said that the mother had falsely represented to him that she was using birth control. Her non-disclosure “criminally induced him.”

Mother brought a motion under CLRA, s.1, 8, & 10. Allows a court to make an order for DNA testing.

At that time, he said that it would be an infringement of his Charter rights.

The woman, at the time, asserted evidence that the parties had enjoyed an intimate sexual relationship.

After the child was born, the male signed the birth certificate with vital stats.

He said he signed it because she said she wouldn’t pursue child support if he signed.

The s.10 order, if made, directs three people to go for testing: mother, alleged father, and child.

In considering if such testing should be done, the court addressed what had to be proven. She had to prove:

a) Evidence the parties engaged in a sexual relation of some duration . [courts are less likely to make those orders if it was a one-night stand.

b) The court took into account that he signed the vital statistics certificate.

c) Court considered other features:

i) Whether there is potential harm to the physical well being of any one of the three parties. In assessing the potential harm, authority is H.v.H.- p.793. [practical note: it is DNA all the way – not invasive.]

ii) Is there a bona fides about the application? More likely to be found if there is only one person being targeted. If the mother at sexual intercourse with many people at the material time, then you either dismiss the application or direct the others have to be invited to the party as well. Here, there was no evidence of any other partners and the signed admission on the birth.

iii) Blood testing is too invasive. It is a charter violation. S.10(3) – all a court can do is make an order directing parties to be tested. There is no penal consequence for refusal. However, a court may draw an adverse inference from your failure to provide a sample unless you have an explanation.


iv) In assessing whether to make an order, the court considers that the child has a right to know about parentage. That is an assessment in why you would advance the relief of granting an order.

So, the court said it was in the child’s best interest to make the order requiring blood testing.

What is novel here, is that at that time, the judge made an interim child support order. What is alarming about that is that is raises the prospect that should the results of the test come back negative, then you must look at repayment.

In most cases, judges don’t do this. When the DNA comes back, judges make a retroactive order instead.

(2) EXTENDED DEFINITION OF THE TERM PARENT.

[‘Who’ a parent is when not the birth or adoptive parent.]

Aksugyuk v. Aksugyuk (1975) 17 RFL 224

The court found that of three children of the marriage, the husband was not the birth parent of one.

Apparently, he had a nagging suspicion that one child wasn’t his.

In determining if he stood in loco parentis, the court said: “To come within the meaning of the child as used in the Divorce Act, the person must be either be the actual issue of the parties or in a position where he is treated in loco parentis. But here the person is neither. To be in loco parentis it seems to me the husband must ‘intend’ to place himself in the position toward the child ordinarily occupied by the father, which intention must be based on the knowledge that someone else was the father.”

The husband had treated all three children equally. He had behaved as a parent. But because he did not know conclusively, the court said you cannot put the same weight on his behaviour.

Intention to treat the child, because you know it is another person’s child, is important.

Carson v. Carson [see handout]

Addresses: what you do when there is more than one respondent.

The applicant wife. There were two kids: Chrissy.

The father of Chrissy is AWAL. The other child is George Junior. The birth father of George Jr. is Todd.

The wife is married to George.

The wife first sued her husband. George said hold it. He said George Jr. was not his child. Blood test confirmed that Todd was the birth father.

George then said you can’t tag me since I am not the birth parent.

The wife wanted to tag him on ‘settled intention.’

George said he didn’t have a settled intention.


Todd said that George should be responsible too. He wanted to spread the liability.

Issues: is George a parent to Chrissy & Jr. by loco parentis?

The court focused on Chrissy – which neither respondent was a birth father. The court concluded that George had done nothing to demonstrate what a loving parent would do.

Court looked at case law: Ogden v. Anderson. This poses a number of considerations about the meaning to be contributed to the words of ‘settled intention.’:

1. The statute is tightly worded. It requires an intention, and that it be settled – over a period of time.

2. You have to be careful about how broad you apply this provision. Serious practical problems – it will discourage third parties from developing relations.

3. There are some identifiable factors in determining settled intentions:

a) Was there financial support provided?

b) Did the parties marry or cohabited?

c) How long were they were together [the longer the period of cohabitation the stronger the assertion will be.]

d) What was the day-to-day care of the children?

e) What was the role of this person, who is said to be a parent, in vital activities such as education and discipline?

f) How did the child and this person acknowledge one another in their respective roles?

Take all of these features and assess them over a period of time.

The first child, Chrissy, spent most of her time with grandparents.

George did not have a settled intention with crissy.

What about George Jr.? The court concluded there was a deemed acceptance of parental status based on behaviour.

o When the child was born, George was right there in the birthing room.

o The court looked at the fact that he took a positive steep of marrying her.

o He demonstrated his intention. [Blommaert (1985), 50 OR (2d) 699.]

There may be something of a conflict between Aksugyuk, in which it suggests that there be a real intention as the result of actually knowing. In Carson, there is a suggestion that he ‘ought’ to have known.

“It is my view of the evidence that George knew or ought to have known that another man might be responsible for Mary’s pregnancy.”

Court concluded that he should be tagged with parental status. That meant that Jr. had three parents.

Todd was able to assert the view that you could spread the liability around.

The court found the child had needs and allocated the liability between the three.


Chartier v. Chartier (1999), 43 RFL (4th) 1

SCC is finally weighing in ton the issue of a person trying to terminate settled intention parent status.

Parties were married for a year. There was no dispute that during the marriage, the husband treated the child as if it were his own.

Then, the light-switch defence. The day he separated, he said I am not having anything more to do with this kid. He said he terminated parental status and said he had no settled intention. He repudiated the parent-child relationship.

The trial judge said he is unilaterally terminating the parental relationship.

SCC – throws this defence out. Once you are tagged with parent status, it is an ongoing obligation. To determine if there is a settled intention exists at the time that the family functioned as a unit (not later on during divorce.) Ask, ‘when they were living together, had a relationship been established? If it is established, that ‘parent’ cannot withdraw.

It has ended the debated about abandoning a parental role. Closed the door to unilateral termination. The reasoning suggests that neither party can agree to terminate the status.

Conflicting case law : Carignan – a parent can unilaterally withdraw from parental status by behaving in that way. The court said is was unreasonable to impose a long-term financial commitment in circumstances that could be a short-term relationship.

Carignan was in conflict with two other authorities: Andrews, and Theriault.

SSC made the following points in relation to loco parentis :

1. An adult should not be allowed to unilaterally terminate the relationship. It is not in the child’s best Interest to have parent like figures passing in and out of the child’s life. SCC seems to assume that the person who has left will continue the relationship with the child regardless.

2. Even though many of these relationships are of short duration, the SCC tests applies even in a short relationship. The SCC is imposing a long-term financial obligation, even if the person was just being pleasant to child in short-term relations.

3. In Chartier, the period of cohabitation was somewhat short. As a result, he has a long-term obligation. The SCC is not concerned about whether that is reasonable or not. [what would you advise a client who is starting a relationship and that person has 13 kids?]

Chartier may be opening a Pandora’s box.


(3) AGE LIMITS. HOW LONG IS THE CHILD SUPPORT OBLIGATION GOING TO BE?

Under the Divorce Act, the duration of child support obligation, is to the age of majority provided that… parent’s charge…or other cause.

Under the Family Law Act, S.31(1) Obligation of parent to support child - Every parent has an obligation to provide support, in accordance with need, for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. [the obligation for child support is absolute.]

S.31(2) Idem - The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

Basically, support under the FLA is absolute until age 16.

Zedner v. Zedner (1989), 22 RFL (3d) 207

Involves the FLA and an assessment of the term, ‘withdrawn from parental control.’

Child was 19 and lived with mother and stepmother.

Within the home, the stepfather was very controlling. That tyranny resulted in a breakdown of the relationship between all three.

The mother and stepfather decided to move. The child didn’t want to go and lived with her grandparents.

She needed money. She sues for child support. Not common.

She initiated her own child support application.

The mother’s defence was simple. She isn’t here because she has withdrawn from parental control. Over 16.

The court reviewed Haskel (1980), 25 OR (2d) 139, p.811. the importance of Haskel has to do with the quality of withdrawal. The withdrawal has to be voluntary. It means that the voluntary behaviour is an exercise of free choice. The child decided, unilaterally, to leave. If the choice of leaving was not voluntary but of necessity, then it does not amount to withdrawal from parental control.

Her leaving was not voluntary.

The court referred to the Dolabaille v. Carrington (1981), 32 OR (2d) 442 – you have got to make out in the clearest of proof withdrawal of parental control. Cogent, persuasive evidence. You must demonstrate free a voluntary withdrawal from reasonable parental control.

The child’s condition was not voluntary, p.812, “I am not satisfied in this case that Dana… Circumstances made it impossible to continue living with her mother…two years…setting.”

The child presented no more trouble then an

Voluntariness is an important feature in demonstrating withdrawal from parental control.


Harrington v. Harrington (1981), 22 RFL (2d) 40

Where there has been an interruption in child support status.

Note this case is under the Divorce Act, not FLA.

Involves a former wife appealing a dismissal of her application to vary. She sough spousal support and child support.

The child support request had to do with a 22-year-old daughter. The daughter left the home when she was 18. a few years later, she developed a serious mental illness. She returned home to live with her mother.

At this juncture, she is receiving social assistance.

So, the daughter is 18. No issue. She has withdrawn.

Issue: Can she fall back into child status for child support liability?

The trial judge found that when she reached the age of majority, she was not disabled. The trial judge took the position that if it happened when she was an adult, then she couldn’t be brought back in.

The CA differed. The CA found that she was a ‘child of the marriage’ for child support purposes:

1. The court was taking a broad view of the federal legislation.

2. In arriving at this finding, the CA made reference to the term, ‘at the material time.’ it concluded, “it is to be directed at the child’s situation at the time of the court hearing.” That is when you assess if the child falls into the definition of ‘child of marriage.’

3. The court reaffirmed the need to look at each case on its own merits.

4. The court said you get to pose certain questions. It said if the parties had not have been separated, would the parents likely not have looked after the child?

5. The court said that when you have an adult child, is there a public interest component, or a public purse component, which will affect the amount? Yes. When you are dealing with an adult child you can look at this. The money she was receiving from assistance did not meet her needs. The public purse component is a relevant circumstance. P.814 “there is not a generalized parental obligation when you are talking about an adult child. It is not appropriate to put the parents obligations ahead of the public”

6. The court concluded it was not unreasonable for a parental liability, but it was to be of a residual nature. The court concluded there was an obligation to support himself, spouse, and adult child – over what is needed over and above the money received from social assistance.



Harrington v. Harrington

Stands for the proposition that child dependency for support purposes can re-emerge even though a child has become independent.

Make a distinction – it was an application to vary under the Divorce Act. Under the FLA there would be no child support eligibility.

The court found there were two sources for which support could be sought: the parent (father) and social assistance.

Because the father’s income was reduced as it was, the child’s need was not met.

Smith v. Smith (1987), 12 RFL (3d) 50 (BCSC)

Adult child.

Focused on the liability for support for an adult child whose disability is that they are not employed and do not have any skills.

20-year-old daughter, capable of working, but unable to find work.

The father brought an application to vary the child support by terminating it. He argued that she no longer fell within the definition of the child under the Divorce Act.

The court granting the application, but said that it would continue for 6 months.

There was no question about the efforts made to seek work. She had made reasonable efforts. She had problems because of the poor economy and lack of job skills.

Would this keep her in the meaning of “other cause?” Remember that under the Divorce Act…other cause.

Bruelher & Weir cases. P.815

In Weir, where a person’s financial need is a result of the labour market, then that can fall within the definition of ‘other cause’.

The court is not prepared to give this without some limit. The court adopted an unwritten rule of thumb: Child support will stop at age 21. So, if child support is provided after 21, it is usually because of some specific circumstance – e.g. illness.

These cases address the situation where adult children are hampered by their own inability and lack of education.

Guidelines to help in cases where the child’s need arises out of lack of skills/employment: p.816.

1. Each case will turn on its own circumstances.

2 What efforts the child made to seek employment. The court is looking for diligent effort.

3. Twin considerations: poor state of economy and poor job skills. That brought her in the ‘other cause definition.

4. Parental responsibility ends and social responsibility takes over – usually by age 21. It is not a blank cheque.


Looking at economic situations, and how it can restrict job opportunities for unskilled workers, will bring into play the ‘’other cause’ definition. For an adult child, there is an onus to take steps to achieve self-sufficiency.

DETERMINING THE AMOUNT:

Basic Operation of the Child Support Guidelines:

Two sets of guidelines, both provincial and federal. However they mirror each other so it is really like one.

Federal guidelines – use these when using the Divorce Act.

Provincial guidelines – use these when using the Family Law Act.

If you compare the two, there is very little difference.

The statutory framework for recognizing the guidelines is found in both statutes.

The statutory obligation for child support is under s.31 of the FLA. It is under s.15.1 of the Divorce Act.

Under both, the court can make interim awards.

S.34(1)(a) of the FLA – authority for interim orders.

S.15.1(2) – Divorce Act – authority for interim orders.

Both statures require adherence to the guidelines: s.33(11) of the FLA & s.15.1(3) of the Divorce Act.

A court in making a child support order must comply with the guidelines.

Broad themes:

1. Joint Parental Responsibility. Both parents have a responsibility for the support of their child.

o S.33(7) of the FLA. That parental responsibility. S.1 of the Divorce Act.

2. Priority of Child Support. This means that both pieces of legislation and the case law advance the notion that child support obligations rank ahead of other obligations, including third party creditors. Obligations for child support rank in priority to expenses that a non –custodial parent has with one exception: “undue hardship.” S.10 of the Child Support Guidelines.

3. Child support obligations, in the sense of taking priority, to spousal support obligation . S.15.3 of the Divorce act. S.38.1 of the FLA. They say that when you have competing claims, the child support obligation must be dealt with first if there is not enough money to go around.

4. Child support is recognized in law as the right of the child. Authority: Richardson (p.538 – one of the three Pellech trilogy cases). The child’s right to support will not be bargained away. The court’s retain an overall authority to intervene if the parent’s bargained away the child’s rights. Also in Boss.


Objectives of the Guidelines.

S.1. In both the provincial and federal guidelines. They mirror each other.

The guidelines are clear about the presumptive rule. It presumes that the child support, according to the guidelines, is appropriate. You as the lawyer have to accept that it is the appropriate amount. You cannot litigate this. This is s.3(1).

The basic operation is this: A husband and a wife separate. There is one child who lives with the wife. The question is what is the child support going to be? The answer, barring exceptional circumstances, is determined by how much the payor makes - what is the payor’s total income. The payor is the non-custodial parent. If the payors total income is $100,000, you go to the guideline tables. P. 311-312.

Change the facts. Say there are two children. Go to p.314 –

You ask how much is the total income? Then ask how many children are there? You then go to the guidelines. That is called the base amount of support. As you are able to discern the base amount of support, it is dependent on how much money and how many kids. Authority: Meloche v. Kales.

Special and extraordinary expense

S.7 of the Child Support Guidelines. An exhaustive list of 6 categories of additional expenses.

These are additional expense which the court may order to be paid, by the parents in proportion to their respective incomes.

There are factors governing the courts discretion in determining if this will be paid.

S.7(1) Special or Extraordinary expense – In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under s.33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parent’s or spouses and those of the child, and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

a) child care expenses incurred as a result of the custodial parent’s employment , illness, disability or education or training for employment;

b) that portion of the medical and dental insurance premiums attributable to the child;

c) health-related expenses that exceed insurance reimbursement by at least $100 annually , including orthodontic treatment, professionally counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary and secondary school education or for any educational programs that meet the child’s particular needs;

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities.


Factors governing the court’s discretion:

o 1. Necessity.

o 2. Reasonableness.

o 3. Pre-separation spending patterns.

So, if there is a legitimate expense, the cost is apportioned between the parents.

This requires both parents to provide proof of their means and income. They both have to disclose all of their total income.

The statutory considerations for assessing:

You must prove that it is a necessity. This is the easiest of all of the tests.

Difficult areas – the reasonableness of the expense. E.g. Finishing school in Switzerland.

Pre-separation expense habits of the parties. If they were still together, would that expense happen?

S.7(3) – Subsidies, tax deductions, etc. – In determining the amount of expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Child care expense and tuition are recognized as extraordinary expenses. Both are likely to get a subsidy or tax impact.

‘extracurricular activities’ – the court’s have to grapple with that. Is it reasonable? Would it have fit given their pre-separation spending patterns?

Case law is all over the board. The income will likely be a big determining factor.

Special situations where income earners in excess of $150,000:

The chart ends at $149,999. How do you determine the support?

S.4 of the Child Support Guidelines. It allows you to do two things/two ways to do with it:

1. To award the amount, extending the percentages.

2. A court can engage in a three step process if it considers that amount to be inappropriate:

a. You award the table amount for the first $150,000. So you go to the table and figure it out.

b. Then, you look at the condition and need of the child and the financial ability of each parent to meet those needs in excess of the award of the $150,000. That is applying what was previously the law. Authority: Paras – figure out what the needs are of the child, and then look at the ability of each parent to contribute to that need.

c. You add on any special or extraordinary expense.

The problem with this, is that you are still going to run into some unusual situations.


(2) HIGH INCOME EARNERS

Simon v. Simon (1999), 1 RFL (5th) 119

Parties separated and had a separation agreement.

The father was supposed to pay $2,200 a month. It was incorporated into a divorce judgment.

The father was in the NHL. His salary later increased to $1,000,000.

So, the mother wanted a variation consistent with the guidelines.

He said that his employment contract was only for two years. He said it was inappropriate that the guidelines apply.

The trial judge refused to implement the mother’s request to the highest level.

CA said that the trial judge erred in a number of ways.

o He placed too much emphasis on the mother to provide a child care budget to show how the money would be used.

o The burden is always on the paying spouse.

o The trial paid too much attention to the fact that it was a two year contract. It could always be varied later on.

Francis v. Baker – SCC. Has suggested that it is not necessarily inappropriate.

The court will make large support orders consistent with the guidelines.

Child over the age of majority. How do you determine child support?

s.3(2) – provides the court with an option choice. The court can:

o a) apply the guidelines; or

o b) apply the Paras formula – looking at the child’s needs, assessing the parent’s ability to meet those needs.

What do you do when you have an adult child going to university, and working part time? It may not be appropriate to apply the straight guidelines..

There is an option. The court applies the guidelines or the Paras formula.

Split Custody – specific term for child support guidelines.

S.8 Split custody. Where each parent or spouse has custody of one or more children, the amount of an order for the support of a child is the difference between the amount that each parent or spouse would otherwise pay if such an order were sought against each of the parents or spouses.

E.g. Parents separate. Two children. One child goes with each. What then?

You determine, on the table, what the husband would pay to the wife. Say $1500/month. They you go to the table and figure out what the wife would pay to the husband. Say $1000/month. Then, one pays the other the net difference. That is the consequence of split custody.


Shared Custody – Note: don’t confuse this with custody and access under the Divorce Act.

S.9 Shared Custody – where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account:

a) the amounts set out in the applicable tables for each of the parents or spouses;

b) the increased costs of shared custody arrangements, and

c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.

Eg. Two parents. One child. The potential payor, say the husband. But the husband says wait. My access arrangements – I have the kid at least 40% of the time. If that is the case, then the guidelines don’t work.

If he can advance that, he can advance s.9 of the guidelines. It recognizes that if the access parent has the kid for 40% of the time, then figuring the child support is more complicated.

The court must take into account these features:

o 1. The court must look at what the guidelines say.

o 2. it must take into account the increased costs of the shared custody arrangement for the access parent.

o 3. must look at the condition, income and expense of each spouse, and the needs of the child. This is the Paras formula. Quantify the needs of the child. Look at the ability of each parent to pay and apportion the cost.

This is challenging because the parents will be arguing over the percentage and what percentage is counting when the child is in school.

Undue Hardship

S.10 of the Guidelines.

The discretion and access to this section is tight. The courts don’t want people running to section 10 to set aside the scheme of the table. It allows a payor to ask the court not to apply the guidelines.

There are two broad features of the undue hardship test:

1. Household standard of Living. S.10(4) & Schedule II. [the comparison between this is a method by which the court looks at the standard of living of both households if the guideline amount were imposed. If the payor would be reduced to an awful standard of living, and the payee has an enhanced standard of living, the undue hardship may be engaged.] The calculation is complicated. It required full financial disclosure of both parents.

2. There has to be features of undue hardships. They are referred to s.10(2). Debts, access costs, legal duty to support another person. So, if you have a payor supporting 12 other children, that may be a factor that triggers the undue hardship. The payor, in order to bring the undue hardship, must still demonstrate the household standard of living test.

It is very narrow and restricted. The test is high. It is statutorily made difficult. Remember the presumptive rule that the guidelines should apply.


EXAM (3 hours long)

Looking for clear arguments, using case authority. Write clearly. Write on every other line.

There are four hypothetical questions. No choice.

Each question has four sub-questions in it.

Major areas to focus on:

Family Law Act - Part I.

S.4(1) – Definitions.

o Premarital deduction v. Excluded property.

o Know how equalization works in determining NFP.

S.5(6) Variation of share. This is a critical section.

o There are a number of cases dealing with the courts ability to opt out of the NFP equalization based on the test of ‘unconscionability.’

o Look at the cases including the LaBlanc (?) decision.

o Mala fides.

Property Division, under the FLA.

When parties do not fall within the definition of ‘spouse,’ there are property issues.

For Part I, ‘spouse’ means married person.

"spouse" means either of a man and woman who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.

Focus on the common law remedies.

Focus on Trust doctrines. Define the Constructive Trust v. Resulting Trust. Know the differences.

Know the evolution of the trust doctrines. Use cases. How have they changed along the way with the SCC and Ontario CA?

Know how the trust doctrines have, in effect, evolved over time such that you can provide a difference between the court’s view in Peter v. Beblow, & Rathwell.

Know how the Ontario Court of Appeal has broadened the application of trust doctrines to beyond married persons to common law spouses.


Divorce Act.

A divorce presumes the legitimacy of a marriage union.

A curve that he is going to throw to us is calling into question the validity of the marriage itself.

Go to the ingredients of a valid marriage: Essential ingredients (opposite sex, etc.) and the ingredients of Formal Validity.

A possible scenario would be that parties are married, but there will be a defect. You must determine if that defect is enough to render the marriage invalid.

Know the available remedies. Remember that there are remedies that may not be available to those people who are not married.

If they are married, must address grounds for divorce.

S.8 of the Divorce Act. Three fold: no fault grounds, and fault grounds: adultery & cruelty.

Define what the grounds are and how they are proven.

Reference to cases. Cruelty ground – tell him the definition of cruelty at the s.8 of the Divorce Act, Knoll case. The Knoll decision rejected the old law which was the Russell test.

Know the grounds and what you must do to prove the grounds. Shaw decision.

The three C’s – bars to a divorce: connivance, condonation, & collusion.

o Collusion is not discretionary.

o Know how do define them. Facts will be presented and know if they fit.

Jurisdiction issues: S.3(1) of the Divorce Act.

S.3.(1) Jurisdiction in divorce proceedings. A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

Family Law Act – Part II

Matrimonial Home.

S.17 & 18 – definition of the mat. Home.

Something may look like a home.

S.19 and s.24 – gives both spouses have the equal right to possession regardless who bought it, etc.

Exclusion possession. S.24(3). Know this. Be able to tell how you would be able to get exclusive possession.

s.24(3) Order for exclusive possession: criteria - In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected; (b) any existing orders under Part I (Family Property) and any existing support orders; (c) the financial position of both spouses; (d) any written agreement between the parties;


(e) the availability of other suitable and affordable accommodation; and (f) any violence committed by a spouse against the other spouse or the children.

Three principle tests to be aware of: economic argument, best interests of child, violence test.

Going to be problems that focus on Spousal Support. This is the tricky area. You need to know that there are two statutory pathways.

Know the difference between the two. Strategize which will be the better of the two and why.

Family Law Act, Part III. S.29-50.

In the hypothetical, make sure the client fits the definition of ‘spouse’.

The spouse club is bigger here than in part I.

You must first get over the test of whether or not they fall into the definition of ‘spouse’.

Then s.30 Obligation of spouses to support. Duty to support. Be familiar with spouse and spousal support.

S.33(9) Determination of amount. This is a big section. Don’t memorize it. That is stupid. It is too big. It is simple. It talks about the factors you take into account when deciding the amount. Like how much they make, debts, employment background. It makes sense. You should generalize about what they are. There are a couple that are a little unusual.

o S.33(9)(j) a contribution by the dependant to the realization of the respondent’s career potential. Know this. Caratun, Keast. It has to do with contribution to the advancement of the other person’s income potential. Definite question.

S.33(10) is very important. ‘Unconsciounable’. Spousal misconduct does not affect the right ask, but may affect amount. That is difference from the Divorce Act.

o S.15.2(5) of the Divorce Act says spousal misconduct is not relevant at all. Strategize that if you have a louse for a client , you won’t look for support under the FLA (if married).

S.33(10) Conduct. The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

Take into account the Divorce Act, s15(2). Factors/objectives for spousal support under both statutes.

S.15(2)(4) & (6) – gold mine. You can use this to advance an argument for or against spousal support.

Variation provisions of both statutes: Divorce Act, s.17, FLA s.37 & 38.

Under the Divorce Act, there is a clear identification for the factors and objectives. They mirror the FLA. They are important.

They have an economic grounding.


Custody and Access.

Like spousal support, there are two possible pathways. (provided the client is married.)

S.16 of the Divorce Act is a situation at first instance – when the parties first go to court.

‘Best interests’ is the same in both statutes.

Parental misconduct is not relevant in either statute, unless…parental ability.

There will be a lot of facts listed in the hypothetical. The facts may or may not be relevant. Know which ones are important.

Note the Childs Law Reform Act. It has some additional provisions that may help. It has a few things that the Divorce Act doesn’t.

o It has s.24(2) – very defined criteria for the term ‘’best interests.’ It is not in the Divorce Act.

o In addition, there are a few resources the CLRA has that the Divorce Act doesn’t have: s.30 of the CLRA – provides for custody & access assessments. However, there are limits (case law tells you). Assessments often help the court.

S.31 of the CLRA – mediation.

OCL - Ontario’s Children’s Lawyer’s Office – know how it came into play and what it does

Features of Custody & Access: Status quo. A hypothetical will have a potential status quo situation and you will have to say if there is, to whose advantage, how…de facto, conduct.

Circumstances of a non-birth parent advancing a custody claim.

Understanding the meaning of the term joint custody. Don’t tell him about split custody. They are not the same thing. Focus on what joint custody is. Three essential ingredients. Baker, and Kruger.

Domestic Contracts – major area.

Part IV of the FLA, s.51-60.

Know what the contracts are.s.51-54.

Three types of contracts: marriage contracts, cohabitation agreement, & separation agreement.

Know what can and cannot go into contracts.

S.52(2) Rights re matrimonial home excepted. You cannot put any rights that affect possession rights and custody.

Form provisions of s.55: writing, signed, witness.

S.56 Contract subject to best interests of child. Defines the terms when a court can intervene. E.g.. interests of a child. Child’s rights need to be protected. Include – deficiencies.

Addresses variations of contracts as it relates to spousal support.

Know the Pellech trilogy. Causal connection. Gross change. Economic dependency as a result of the circumstances of the marriage. Be able to explain the logic about it and its fixation on self-sufficiency, s.15(6)(d).

Move in the evolution. Where is the next step? Moge. SCC stopped the Pellech trilogy train.


Moge brought it back on track. L’Heureax-Dube. S.15(2)(6).

We have continuing controversy on what is the correct test when you seek to vary an agreement post- Moge. Masters, B v.G. (Miglan - not decided yet – but may settle it.)

Be able to tell him what you know about the authorities and if the authority will work for your client in a hypothetical or not. Definite question.

S.33(4) of the FLA. A court’s intervention in a waiver of a domestic contract under three circumstances: unconscionablity, public purse, default.

Know setting aside a domestic contract, disclosure and independent legal advice.

Can use abbreviations on exam.

week one: - university of windsorweb2.uwindsor.ca/sls/cannotes/familylawphillips.doc · web views.3...

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